R. v. Nicholson Date:, 2011 BCPC 316

Citation: R. v. Nicholson Date: 20111003 2011 BCPC 0316 File No: 15590-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRUCE PETER NICHOLSON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: M. West Counsel for the Defendant: A. Sawyer Place of Hearing: Sechelt , B.C. Date of Judgment: October 3, 2011 [ 1 ] THE COURT: Bruce Peter Nicholson is charged with assault with weapon, assault cause bodily harm, possession of a weapon for a dangerous purpose, and unsafe storage of firearms. [ 2 ] Mr. Nicholson owns a large rural property in Sechelt.

On the property is a trailer that he rented to Troy Spragg. On May 19th, 2010, an agreement was made to continue the tenancy if Mr. Spragg paid his rent the next day. Mr. Nicholson attended at the trailer to collect the rent the next day and, as a result of what occurred, he was charged with the first three offences that I have referred to. [ 3 ] The fourth charge is as a result of the police attendance and search of Mr. Nicholson's truck and residence. The police were there to arrest Mr. Nicholson for the first three charges. [ 4 ] The issues for me to resolve are as follows: 1.

Has the Crown proven beyond a reasonable doubt that the defence of self-defence does not apply to Counts 1 and 2. 2. Has the Crown proven beyond a reasonable doubt that when Mr. Nicholson attended at the trailer, he possessed a firearm for a purpose dangerous to the public peace or for the purpose of committing an offence. 3. Were the firearms located in his truck and house being stored improperly or being used.

[5] For the reasons that follow, I have determined that Mr. Nicholson is not guilty of all of the charges. [6] I will first explain why I have determined that the Crown has failed to prove beyond a reasonable doubt that the defence of self-defence does not apply. This issue requires me to assess the reliability and credibility of Mr. Nicholson and several witnesses.

However,the test in a criminal trial is not which side I believe, but whether on the totality of the evidence the Crown has proven each essentialelement of each offence beyond a reasonable doubt and, in addition, has disproved each defence beyond a reasonable doubt. [7] As in every case where there is evidence that raises a defence, I must apply the rules established in R. v. W.D., (SCC), [1991] 1 S.C.R. 742. See also R. v.

Gladue, 2005 BCPC 365, a decision of my colleague Judge Rounthwaite. [8] When assessing the witnesses' credibility and reliability, I will consider their testimony from three perspectives: 1. their truthfulness; 2. their objectivity; 3. the accuracy of their observations, which include the witness' ability to observe, remember and communicate accurately. (See R. v.Gladue). [9] The Crown's case with respect to Counts 1 and 2 is dependent on the evidence of Troy Spragg. I have assessed Mr. Spragg'sevidence from the perspectives I previously mentioned and note the following.

Factors relevant to truthfulness include attitude anddemeanour. When considering demeanour, I try to consider all possible explanations for the witness' attitude and to be sensitive toindividual and cultural factors which may affect demeanour. (Again, see R. v. Gladue). I noted Mr. Spragg's demeanour during cross-examination and that causes me concerns about his truthfulness. [10] More significantly, however, is Mr. Spragg's abilities to observe, remember and communicate. On May 20th, 2010, Mr. Spraggwas in active addiction, that is, he was abusing both alcohol and drugs.

As a result, I have serious concerns about his ability to observeand remember. Accordingly, I have determined that it would be unsafe to rely on his evidence. I am only prepared to accept his evidenceto the extent that it is confirmed by a witness whose evidence I believe. [11] I have assessed Mr. Nicholson's evidence from the three perspectives that I have previously mentioned and have concluded that Ibelieve Mr. Nicholson. [12] Accordingly, I find that Mr. Nicholson entered Mr. Spragg's trailer for the purpose of collecting rent. He awoke Mr.

Spragg,who picked up an object, likely a bottle. (I add parenthetically that this point was denied by Mr. Spragg on cross-examination.) ThenMr. Spragg, with the object in hand, went toward Mr. Nicholson, who, fearing he would be assaulted, struck Mr. Spragg once in the legand once in the head with the barrel of the gun he was carrying. Those actions constituted self-defence in accordance with s.37 of theCriminal Code, as the force used was not excessive. [13] With respect to Count 3, the count of possession of a firearm for a purpose dangerous to the public peace or for the purpose ofcommitting an offence, Mr.

Nicholson lives in a rural area. He has a five acre property. Mr. Spragg's trailer is located some distancefrom Mr. Nicholson's house. As described by Constable McKenna, Mr. Nicholson's property is in a remote area, there is a likelihood ofbears and coyotes in the area, and it is not surprising that Mr. Nicholson would have weapons. [14] On May 20th, 2010, Mr. Nicholson was aware of a recent bear sighting on the property. He testified that is why he was carryingthe gun when he went to see Mr. Spragg. His use of the gun to prevent the assault was in self-defence. I accept Mr. Nicholson's reasonfor having the gun.

It was possessed for a lawful purpose. (See also R. v. Stewart and Walsh, 2005 BCSC 1818. [15] With respect to Count 4, this concerns four guns located by the RCMP when they attended at Mr. Nicholson's house on May20th, 2010. One was located in a truck on the property with ammunition nearby. With respect to this rifle, as discussed with Crowncounsel during submissions, it was conceded that the exceptions contained in the Regulations apply. Accordingly, I have concluded thatCrown has failed to prove improper storage beyond a reasonable doubt. [16] The second gun was located in Mr. Nicholson's house, disassembled.

With respect to this firearm, I have a reasonable doubt as towhether ammunition for this firearm was readily accessible, and accordingly, because of the exception contained in s.5(2) of theRegulations, I find that the Crown has failed to prove improper storage beyond a reasonable doubt. [17] With respect to the two loaded firearms in Mr. Nicholson's bedroom, readily accessible and not locked in any way, I haveconcluded that they were in use. I have come to that conclusion for the following reasons: 1. Mr. Nicholson resides in a remote area. 2.

It is an area frequented by predators, that is to say wild animals such as bears and cougars. 3. To deal with a predator there is really no time to load a gun prior to a predator attack. 4. I accept Mr. Nicholson's evidence with respect to his need for a loaded gun for predator control. 5. I accept Mr. Nicholson's evidence that to deal with predators on his property, two different types of guns are required. 6. While both guns may have been used collectively a total of four times in a year, which on the evidence I take to mean fired ordischarged, having accepted Mr.

Nicholson's evidence that the need for predator control is a real and pressing concern, the limitednumber of times the guns were fired is not sufficient, in this case, to change it from use to storage. 7. I accept Mr. Nicholson's evidence that he was using the guns for predator control, as exemplified in this case when he had a gun with

him when he walked to Mr. Spragg's trailer. (See also R. v. Joe (1996), (AB CJ), 192 A.R. 99, a decision of theAlberta Provincial Court). [18] Accordingly, the accused is acquitted on all counts. (REASONS FOR JUDGMENT CONCLUDED)