R. v. Nicholson

2018 BCSC 515 R. v. Nicholson

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nicholson, 2018 BCSC 515 Date: 20180302 Docket: 26396 Registry: Vancouver Regina v. Christopher Michael Makoto Nicholson Before: The Honourable Madam Justice B.J. Brown Oral Reasons for Sentence Counsel for the Crown: P.W. Hogg M. Barrenger Counsel for the Accused: B.A. Martland P. McGowan Place and Date of Trial/Hearing: Vancouver, B.C. March 2, 2018 Place and Date of Judgment: Vancouver, B.C. March 2, 2018 [1] THE COURT: Mr. Nicholson comes before me for sentencing. He has pled guilty to one count involving three incidents of breach of trust. The details of those incidents are set out in the agreed statement of facts. [2] The first incident, on February 18, 2013, at 3:14 a.m., the accused had a Blackberry Messenger, BBM conversation, with an informer he was co‑handling. They discussed a suspected drug dealer. The accused asked the informer if he had spoken with a target (a suspected drug dealer). The informer said he was "beefing" with the target and wanted him dead. The accused replied, "How about just make him poor". The informer then provided information about drugs at two residences in Abbotsford. The accused and the informer then planned to meet to discuss the information and payment. [3] An information to obtain a search warrant was to be prepared by then-Constable Coghill, a fellow APD officer, and the co‑handler

of the informer. Information from the informer would constitute a significant part of the grounds for the anticipated warrant. [4] On February 18, 2013, the accused arranged a meeting with the informer, Constable Coghill and himself. Just before the meeting took place, the accused sent a BBM message to the informer stating, "Let's say that u were at these places in the past week, k." The informer replied, "Okay". [5] On February 27, 2013, between 1:54 and 3:58 p.m., the accused received further information from the informer concerning two targets and their associated residences. Payment for the information was discussed and the conversation ended, with the accused writing the following to the informer, "I gonna set up a bbm group with my buddy u met... But it better to do most chat on this one", and then referred to a cell phone number. [6] On March 6, 2013, the accused arranged a three-way BBM discussion between the informer, Constable Coghill and himself. The purpose of the conversation was to determine what information the informer could provide with respect to the targets and residences that would be the subject of the anticipated search warrant application. [7] Prior to the three-way chat, Constable Coghill sent a BBM message to the accused referring to the informer, which said, "Hopefully your friend will tell you they loaded up today". Next, the accused sent a BBM

message to the informer, "Can you say that [target] got reloaded today?" The informer replied, "You want me to say it?" The accused called the informer and they had a brief conversation. The accused asked the informer, "Can you say that?" and the informer said, "Yeah, w- who do I say it to?" The accused answered, "Just on the group [...] there is cool". Constable Coghill was not privy to this conversation. [8] The group chat then proceeded as follows: The accused: Hear anything new? The informer: A pack went there yesterday, dunno if its been dished out. But on monday there's something lined up for... The accused privately sent a message to the informer: Today fewl." The informer then sent a message on group chat: And one went today too. ... The informer sent a private message to the accused: Better hahhahaa. The accused replied to the private message: Lolu heat bag. [9] A search warrant application was planned and would have been based in part on the information from the informer. Having intercepted these communications, VPD investigators arranged with senior officers of the APD to call off the application for the warrant. No application for a warrant was made. [10] In the second incident, it was also captured through the interception of the accused's communications with a different informer that he was co‑handling with a second APD constable. [11] On April 5, 2013, an

informer sent a text message to the accused asking him if he was interested "in a place with [a specific number] of plants..." The accused asked if it was legal or not, and the informer said it was not a legal marihuana grow operation. [12] The accused then contacted another constable by phone and told him he had received information from a source, and said, "There's only like [and he doubled the number of] plants in the house". The accused asked that constable if he would be interested in that sort of thing, and he replied he would be interested, "Forward it to me we can probably hit it [i.e. with a search warrant] next week". The accused then texted the informer confirming that he had "found a buyer for that" and that he would "work on getting u more paper". [13] In the third incident, on April 17, 2013, the accused had been advised by then-Constable Nugent of the APD Drug Enforcement Unit that a male was under investigation for trafficking. [14] On April 30, 2013, the APD Drug Enforcement Unit officers conducted surveillance of that male and determined that he was to be arrested for drug trafficking. They arranged for the accused to transport that male from the scene of the arrest to the APD detachment, and he agreed to do so. [15] In the course of transporting the male, the accused said to the male: "Yeah, is there shit in the truck? Okay. Shit on you? Okay. 'Cause you got

ah, 'bout seven minutes to pitch whatever the fuck you got before we get there." ... "um yeah so just stay -- don't say fuck all ta anybody an' fuck we'll jus' deal with it. You're sure there's no f' nothing in your fucking car? 'Cause they obviously watched you fucking deal to someone right. So there gonna think that there's more in the car. Okay. An' then if they don't find it in the car they're prob'ly gonna wanna go fuckin' hit your house. Do you need to make a phone call to someone?... [16] That male was released from custody and no charges were made. [17] As counsel said in their submissions, this matter has been before the court for several years. There were many pretrial applications. The trial was set for last fall. It would have been a lengthy trial, with a jury. Mr. Nicholson pled guilty in September 2017. [18] Counsel have, after lengthy negotiation, reached a joint submission on sentence. The Supreme Court of Canada addresses the importance of joint submissions, and the reasons that a judge should defer to joint submissions in R. v. Anthony-Cook, a 2016 decision. In that case, the court notes: Joint submissions on sentence -- that is, when Crown and defence counsel agree to recommend a particular sentence to the judge, in exchange for the accused entering a plea of guilty -- are vitally important to the well-being of the criminal justice system, as well as the

justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty. Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them. [19] The court explains the benefits of a joint submission on sentence, and the public interest or benefit in joint submissions, at paragraphs 35 through 40: [35] Guilty pleas in exchange for joint submissions on sentence are a "proper and necessary part of the administration of criminal justice". When plea resolutions are "properly conducted [they] benefit not only the accused, but also victims, witnesses, counsel, and the administration of justice generally". [36] Accused persons benefit by pleading guilty in exchange for a joint submission on sentence. The most obvious benefit is that the Crown agrees to recommend a sentence that the accused is prepared to accept. ... Accused persons who plead guilty promptly are able to minimize the stress and legal costs associated with trials. Moreover, for those who are truly remorseful, a guilty plea offers an opportunity to begin making amends. ... [38] The Crown also relies on the certainty of joint submissions. Agreements that are certain are attractive to the Crown "because there is less risk that what Crown counsel concludes is an

appropriate resolution of the case in the public interest will be undercut". [39] ... First, [there is a] guarantee of a conviction that comes with a guilty plea .... The Crown's case may suffer from flaws, such as an unwilling witness, a witness of dubious worth, or evidence that is potentially inadmissible -- problems that can lead to an acquittal. ... Second, the accused may have information or testimony to offer the Crown that can prove invaluable ... Third, the Crown may consider it best to resolve a particular case for the benefit of victims ... [40] In addition to the many benefits that joint submissions offer to participants in the criminal justice system, they play a vital role in contributing to the administration of justice at large. The prospect of a joint submission that carries with it a high degree of certainty encourages accused persons to enter a plea of guilty. And guilty pleas save the justice system precious time, resources, and expenses, which can be channeled into other matters. This is no small benefit. To the extent that they avoid trials, joint submissions on sentence permit our justice system to function more efficiently. ... The court goes on to say: Indeed, I would argue that they permit it to function. Without them, our justice system would be brought to its knees, and eventually collapse under its own weight. [20] This is not to say that any of

these particular considerations apply in this case. My point is that there is a very real public benefit to joint submissions in the appropriate case. [21] I am satisfied that the joint submissions in this case should be accepted. It is an agreement reached by very senior and very competent counsel after several years of involvement in this matter. I am confident that this conclusion was not reached lightly. I am also satisfied that this result is within the range of appropriate sentences. [22] Mr. Nicholson has no criminal record. Until these events, he was an active and well-regarded member of his community and of the APD, as his letters of support show. He has experienced personal consequences as a result of these charges and conviction. He has lost his occupation with the APD, a lifelong dream. He has suffered financially. His family has suffered, as well. His reputation in the community, including the police force, has changed dramatically. There is no evidence that he gained personally from his actions which resulted in these charges. [23] This is not to minimize the seriousness of Mr. Nicholson's actions. He was in a position of trust. Society places great trust in police officers and must be able to rely on that trust. Mr. Nicholson's breach has undermined the confidence of the public in at least the APD and perhaps police generally. His conduct reflects on his fellow

officers. He has betrayed them, as well. It was not a crime of the moment. These were calculated actions. His actions led to other prosecutions being stayed. Because of his position, the consequences of his actions are widespread. The impact is much broader than it would be in a more common type of crime. Society rightly condemns this type of conduct. [24] After considering the submissions of counsel, the authorities provided, the letters of support, and my knowledge of the case, I adopt the joint submission. Mr. Nicholson is sentenced to 17 months to be served by conditional sentence. I am satisfied that this conditional sentence will not endanger the safety of the public and is in keeping with the purpose and principles of sentencing. It is a longer sentence than Mr. Nicholson would serve were I to sentence him to jail. He risks being placed in jail if he breaches any of the conditions. [25] The conditions will include the mandatory conditions, which are to keep the peace and be of good behaviour; to appear before the court when required to do so by the court; to report to a supervisor within two working days -- and I am assuming two working days is appropriate? [26] MR. HOGG: I would agree with that. Thank you. [27] THE COURT: And do we have an address? I am taking it would be in Abbotsford? Oh, we do not know the specific address. [28] MR. HOGG: No, and I just reflexively

often refer to the Cordova Street address for the Provincial Court matters. I don't know the answer to that. But I wonder if that could be left in the hands of the registry by saying to report to a community probation office as directed by the Judicial Justice who reviews the order with him. They will be able to give an address. [29] THE COURT: Yes, they will be able to give an address. [30] MR. HOGG: I hadn't turned my mind to that, frankly, My Lady. [31] THE COURT: Yes. And thereafter when required by the supervisor and in the manner directed by the supervisor remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor, and notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. [32] It will also include the following optional conditions. (1) For the first six months of the order, you are to remain in your residence or on your property except for the following exceptions: (a) for employment purposes, including travel to or from employment, where you have given notice in advance to your CSO supervisor of the time and the location of the work to be performed and if requested a letter from your employer confirming that you performed work at the time and place specified; (b) in

relation to your children, (i) for immediately dropping off or picking up children from school or licenced daycare; (ii) for children's medical or dental appointments where you have given notice in advance to your CSO supervisor and received permission from your CSO supervisor; and (iii) for the purposes of taking your children to scheduled activities offered by a third party provider where you have given notice in advance to your CSO supervisor and have received permission from your CSO supervisor; (c) for 2‑1/2 hours per day, from 9:30 a.m. to noon on Saturdays, Sundays and Wednesdays, for the purposes of exercise, shopping and errands; (d) for any medical emergency involving you or a member of your immediate family, including travelling to or from any healthcare facility that must be attended due to the medical emergency, and if requested by your CSO supervisor you must provide written material from the healthcare facility stating the nature of the emergency, who was affected by the emergency, and the dates the person was at the healthcare facility; and (e) at any other time when you have specific approval from your CSO supervisor. (2) Following the first six months of the order, for the remainder of the order, you have a curfew of midnight to 6:00 a.m. daily. You must be inside your residence between those times except for the following exceptions: (a) for employment

purposes or to travel to or from employment, where you have given notice in advance to your CSO supervisor of those times; and (b) at any other time when you have specific approval from your CSO supervisor. (3) You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends at your residence or calls to check your compliance with the house arrest condition of this order. (4) You shall advise all current or prospective employers of your criminal record and the existence of this conditional sentence order. (5) You shall carry a copy of this conditional sentence order on your person at all times when you are outside of your residence, and upon the reasonable demand of a peace officer or your conditional sentence supervisor you shall produce a copy of the conditional sentence order for inspection. [33] With respect to condition (1)(b)(iii), and for the benefit of the conditional sentence supervisor, I have confirmed with counsel that scheduled activities refers to public activities, not a family dinner . [34] I take it there were no other orders to be made in this case? [35] MR. HOGG: No, My Lady. [36] THE COURT: All right. Anything else I need to address? [SUBMISSIONS RE UNSEALING OF DECISIONS] [37] MR. BARRENGER: Sorry, just to be clear, I do not recall whether I entered a stay of proceedings on the other counts. If I did not direct one, I do on the remaining counts on the indictment. [38] THE COURT: Thank you. "B.J. Brown J."