R. v. Nichols, 2019 BCPC 373

Citation: R. v. Nichols 2019 BCPC 373 Date: 20191202 File No: 17426-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. CHARLES NICHOLS AND KRISTOHPER NICHOLS REASONS FOR JUDGMENT ON CONVICTION OF THE HONOURABLE JUDGE CHALLENGER Counsel for the Crown: Alexander R. Clarkson Counsel for the Defendant: Sarah J. Rauch Place of Hearing: Sechelt , B.C. Dates of Hearing: December 2, 2019 Date of Judgment: December 2, 2019 [ 1 ] Kristopher Nichols and Charles Nichols are charged with five counts under the Fisheries Act (FA ). All of the counts are alleged

to have occurred in the waters near Pender Harbour between May 11 th and 13 th 2017 and are: Count 1 – setting prawn gear during a closed time contrary to s. 25(1) Count 2 – fishing for prawn during a closed time contrary to s. 63 Count 3 – fishing without a licence contrary to s. 26(1) Count 4 – possessing prawn caught during a closed time contrary to s. 33 Count 5 – possessing prawn caught without a license contrary to s. 33 [ 2 ] Count 6 is alleges an obstruction of a fisheries officer on May 13 th contrary to s. 62 of the FA and applies only to Kristopher Nichols. [ 3 ] The Crown called the six DFO officers who were involved in a surveillance operation and inspection which began on the evening of May 12 th and carried on into the early morning of the next day.

Three of the officers were from the local Powell River office and three came to the area from the Nanaimo office to assist. [ 4 ] On November 19, 2019 I gave judgement dismissing an application for relief under s. 24(2) of the Charter . These reasons are adapted from that ruling. I have included a detailed analysis of my findings with respect to the use of force by the officers during the arrest of Kristopher Nichols which was the central issue on the Charter voir dire .

I have done so because these findings are potentially relevant to any sentencing proceedings. [ 5 ] On December 2 nd the matter was set for continuation. The evidence entered on the voir dire relevant to proof of the offences was admitted as evidence at trial. The Crown closed its case and the defence elected not to call evidence. Brief submissions were heard respecting conviction. The defense made argument only with respect to the Crown failing to prove the mens rea of the obstruct offence.

EVIDENCE [ 6 ] Information had been received from members of the community up to and including May 11 th that the Nichols had set prawn traps prior to the opening of the commercial prawn season set for noon on May 11 th 2017 and were likely going to harvest the traps at night.

As the local DFO officers were familiar with Kristopher and Charles Nichols they were aware neither possessed a license to fish of any description nor a permit from the Sechelt Band under its communal license. [ 7 ] While on patrol in the area of Blind Bay on the mornings of May 9 th and 10 th DFO officers identified buoys with Kristopher Nichols status card number and telephone number. In the early morning of May 11 th the officers found the buoys had been changed and were consistent with strings of commercial prawn traps having been set.

A check revealed there were baited traps on the lines. [ 8 ] The DFO decided to conduct a surveillance operation on the evening of May 12 th . Three Nanaimo DFO officers - Bromwich, Tadei and Jackson, crossed the Salish Sea to assist and met up with the local officers - Conley, Mott and Rahier, at around 9:00 p.m. There were three officers on each of two vessels. Officers Mott and Tadei were dropped off on an island from which they would be able to observe any activity with the prawn trap lines in question. The other officers went to a bay behind the island and waited.

At around 10:00 p.m. a fishing vessel, which appeared to be the Breakaway, believed to belong to Charles Nichols, was observed in the area of the trap lines. Two people were observed apparently pulling in traps. [ 9 ] At approximately 1:15 a.m. on the 13 th of May the officers determined to conduct an inspection pursuant to s. 49 of the FA . The first DFO vessel, which was clearly marked as such, came alongside the Breakaway. The officers were in uniform. The enforcement light was activated briefly and a spot light was on.

Kristopher Nichols was recognized by Officer Conley, who was the lead inspection officer and well familiar with him. His father Charles was not immediately recognized. The two men were engaged in hauling in prawn traps. He advised the Nichols they were DFO officers and would be boarding to conduct an inspection. [ 10 ] Officers Conley, Bromwich and Rahier boarded. Officer Bromwich had been assigned to act as back up leaving Officer Conley to deal with Kristopher Nichols and Officer Rahier to deal with Charles Nichols.

Officer Jackson remained on the DFO vessel. [ 11 ] Some conversation occurred between Kristopher Nichols and Officer Conley immediately prior to and as the officers boarded. Kristopher Nichols recognized Officer Conley from their prior dealings and, in answer to a query on their authority to fish, asserted they had a right to make money from the commercial prawn fishery and they were fishing under the authority of the purported “Pender Harbour First Nation”. The second male was quickly identified as Charles Nichols. Officer Conley decided to arrest the accused for fishing without a license.

Officer Conley also believed it was necessary to effect an arrest to prevent a continuation of the offence. [ 12 ] Initially, Kristopher Nichols was calm. However, when Officer Conley began to confront him about his unfounded belief that he had a legal right to fish, he quickly became angry and his tone hostile. They were at sea at night with limited lighting. The back deck of the Breakaway was crowded with people and littered with traps, fishing equipment such as gaffs and knives and weapons of opportunity such as lead weights and chains.

Kristopher Nichols stood approximately 6’3” tall and had a lean muscular build. Officer Conley was aware he was unpredictable, volatile and verbally aggressive although he had not been physically aggressive toward the officers in his past dealings with them. [ 13 ] Officer Conley advised Kristopher Nichols he was under arrest for fishing without a licence. The officer reached for the accused’s right forearm but he pulled it away. The officer advised Kristopher Nichols he was under arrest and told him to put his arms behind his back.

The accused again pulled his arm away and stepped back and up onto the elevated hatch cover. He put one arm up to grab onto a boom overhead and squared himself toward Officer Conley with his free arm cocked back and his hand in a fist.

[ 14 ] At this moment Officers Conley and Bromwich independently came to the belief that he was actively resistant and each stepped toward Kristopher Nichols with the intention of bringing him face down on to the hatch cover so he could be handcuffed. Because he continued to resist, this required ongoing force from both officers and occurred slowly.

Officer Conley ended up around the accused’s legs, which he was attempting to flail, while Officer Bromwich ended up around his upper body with a knee on his lower back. [ 15 ] As he went to the ground, the accused put his right hand under his body in the area of his waist. Once he was on the ground Officers Conley and Bromwich repeatedly instructed him to move his hand out from under his body but he did not comply. Instead, it appeared to Officer Bromwich that he was reaching toward his waist area, possibly to get to a weapon.

At this point Officer Bromwich struck the accused with his fist closed over his flashlight on the right side of the head by his cheek. Kristopher Nichols turned his head and he was struck again in the area above his right ear. He still did not comply and was struck a third time behind his right ear. He produced his hands after the third strike and was cuffed. The last two strikes were over top of a rolled up balaclava he was wearing as a toque. [ 16 ] Charles Nichols was compliant with the directions of Officer Rahier. One of his hands was scratched when the handcuffs were put on.

The injury depicted is consistent with a minimal amount of force applied to elderly skin and, according to Charles Nichols, was not a significant injury and probably unintentionally caused. He found the handcuffs to be too tight and a second set was applied to deal with his discomfort. [ 17 ] After the accused were secured they were sat on the hatch cover. They were both advised they were under arrest for fishing without a license and Kristopher Nichols was advised he was also under arrest for the offence of obstruction of an officer. They were provided their s. 10(

a) and (

b) rights from memory. Charles Nichols was given his s. 10 (

a) and (

b) rights from a Charter card by Officer Rahier and declined to contact counsel. [ 18 ] Officer Jackson left to pick up the two officers on the island and return them to the second DFO vessel. The two vessels then returned back to the Breakaway. Kristopher Nichols was examined for injury and none was seen. He did not complain of injury despite a number of queries by the officers about his condition. [ 19 ] Kristopher Nichols was moved to the second vessel, photographed and read his rights from a Charter card. He declined to contact counsel.

He was then transported to Madeira Harbour where he was placed into the custody of the RCMP. He was released later that morning at around 7:00 a.m. [ 20 ] At the time of the inspection the officers believed the accused had picked up at least one string of traps. The traps remaining in the water were picked up by the officers after the arrest. In total, the Nichols had more than 98 traps set. Part of one string was not recovered.

A tub of already harvested prawn as well as any found in the traps were returned to the waters. (It is of note that the Sechelt Nation allows 4 traps to be used under a communal license permit and the traps must be set only between the hours of 7:00 a.m. and 7:00 p.m.) [ 21 ] Charles Nichols advised the Breakaway had some mechanical issues and so it was decided he should pilot the boat back to the harbour. He was released at the dock by the DFO officers. The Breakaway was seized and towed by DFO to a secure location.

CREDIBILITY AND FINDINGS OF FACT [ 22 ] The evidence of each of the officers as to the course of the investigation, the inspection, the manner of the arrests, advising them of the reasons for their arrests, providing the accused with their s. 10 (

b) right to counsel information and opportunity to access counsel and their inspection activities after the arrests is consistent one with the other and accords with the preponderance of probability and common experience.

The inconsistencies in their accounts of the events are what one expects from witnesses who have not collaborated; any differences result from different angles of view, different observations depending on what was paid attention to in the moment and, in particular, different perceptions of an unexpected, dangerous and dynamic event. [ 23 ] None of the local officers was shown to be biased despite their ongoing difficulties dealing with Kristopher Nichols. The Nanaimo officers had no prior dealings with him.

None of the officers expected he would physically resist arrest although they were directly aware or were made aware Kristopher Nichols had been verbally aggressive, defiant and unpredictable in his demeanor in the past. I accept the evidence of all of the officers as reliable and credible. [ 24 ] I find that one vessel and four officers came along side the Breakaway and three officers boarded to perform the inspection. I find Kristopher Nichols recognized Officer Conley. I find the accused were attempting to harvest prawn for commercial purposes.

When the DFO officers arrived to thwart his efforts, Kristopher Nichols immediately became frustrated and enraged. I find that he pulled his arm away from Officer Conley in order to resist being arrested and then stepped onto the hatch cover, steadied himself by grabbing the boom and adopted a fighting stance with his fist cocked. [ 25 ] I accept the evidence of Officer Conley. His evidence was reasonable, fair and consistent.

He did not display any animus or bias toward either accused although he is quite properly concerned and perturbed by the Nichols’ ongoing flagrant disregard for the requirements of the Fisheries Act and Regulations . I accept his evidence that he told Kristopher Nichols he was under arrest for fishing without a license and his description of the reaction of pulling away and stepping up on the hatch. I find he subjectively believed the accused was resisting arrest, the situation was potentially dangerous and use of force would be required to control the accused to prevent an escalation of risk to safety.

I find he grabbed hold of the front of Kristopher Nichols clothing and began to pull him down and ended up with his weight on his legs controlling them. [ 26 ] I accept the evidence of Officer Bromwich. He is a highly educated and trained officer. He was an impressive witness in that he was careful, measured, fair and consistent. He made detailed notes immediately after the events. He was unshaken on cross examination. I find Kristopher Nichols pulled away from Officer Conley after being told he was under arrest for fishing without a license, stepped up on to the hatch, grabbed the boom and cocked his fist.

I find that Officer Bromwich subjectively believed the accused was resisting arrest, the situation was potentially dangerous and use of force was required to control the accused to prevent an escalation of risk to safety. I find his evidence about the manner in which Kristopher Nichols was pulled down to the hatch cover and

his use of three closed hand strikes to the right side of the head as a pain compliance technique in order to gain control to allow handcuffsto be applied to be truthful and accurate. I find he did not intend to or use force that was likely to cause death or grievous bodily harmand did not use any more force than was necessary in the circumstances. ANALYSIS RE COUNTS 1 TO 5 [27] The facts as I have found them prove beyond a reasonable doubt all of the counts.

In addition to the direct evidence set out abovethe Crown relied on documentary evidence which established the accused did not possess any licenses or permits during the period inquestion, that Charles Nichols was the owner of the Breakaway and the date and time of the opening of the prawn fishery in the area. [28] There is no evidence of due diligence being exercised by the accused with respect to counts 1 to 5. ANALYSIS RE COUNT 6 Obstruction of a Fishery Officer [29]

Section 62 of the FA provides: No person shall obstruct of hinder a fishery officer, a fishery guardian or an inspector who is carry out duties or functions under the Act. [30] This is a regulatory offence. The wording of s. 62 does not include the word “wilfully” as does the offence under s. 129 of theCriminal Code. The Crown may rely on the common sense inference that the accused intended the natural consequences of his actions.

There is no evidence to suggest Kristopher Nichols did not have the capacity to form the intent to obstruct the officer and no evidence tosupport he was mistaken as to fact. [31] In R. v. Francis 2007 NSPC 28 the court was dealing with charges of obstruction of fisheries officer where the accused wereIndigenous persons asserting a right to fish under s. 35 of the Charter of Rights and Freedoms as a defence. I agree with the conclusionin this decision that the assertion of a defence under s. 35 of the Charter is not relevant to the charge of obstruction of a Fishery Officer. [32]

Section 62 Obstruction Charges, Relevance Of Proposed Defense: 18. In the prosecution of strict liability offences (as in these cases), proof of the actus reus is not difficult or complex; nor is the usualdefense, ordinarily; except that of a Treaty or Aboriginal right, a complex procedure, in its preparation and at trial, because of theevidence that must, or can, be gathered, disclosed and presented by either side, to prove such a right, its breach, or the justification forsuch breach. Crucial therefore is whether such defense is relevant at all, or has an air of reality: R. v. Bartibogue, [2002] N.B.J.

No. 946(Q.B.); R. v. Whynot (1983), (NS CA), 9 C.C.C. (3d) 449 (N.S.C.A); R. v. Osolin (1993), (SCC), 86C.C.C. (3d) 481 (S.C.C.)). 19. The Crown must prove beyond a reasonable doubt whether the Defendant has hindered a fishery officer in the lawful execution ofhis duty, on the date, and at the place in question. The Defendant may establish due diligence, or mistake of fact. These are questions offact, some within the Defendant`s knowledge. Depending on the number of witnesses, such trials do not usually require much time, andare not complex.

There may be questions of admissibility of evidence (for instance, video evidence, confession, etc...), or Charter issues.The pretrial instructions of the trial judge, and possible directions to the Defendant during the trial are usually sufficient to deal with alltrial issues. These are questions of facts, very focused by the allegations contained in the Informations. The Defendant is entitled to fulldisclosure of the Crown`s evidence; he or she need not make any. 20. It has already been held that an Aboriginal or Treaty right is irrelevant to the defense of such a case: R. v.

Paul, supra; R v.McDonald, (2001), 2001 NSCA 137 , 197 N.S.R. (2d) 318 (C.A.). Indeed in R. v. Nikal, (SCC), [1996] 1S.C.R. 1013, at paras. 90 to 96, the Supreme Court of Canada emphasizes the right and power of the federal government to issue alicense that “may be the least intrusive way of establishing the existence of the aboriginal right for the aboriginal person as well as preventing thosewho are not aboriginals form exercising aboriginal rights.” (para. 95). Its agents must thus be able to inspect such a license.

The exercise of the duty to inspect may not be pre-empted by the very right whichmay have justified the issuance of a license in the first place. 21. There is no evidence before me to distinguish these cases.

Evidence of an Aboriginal or Treaty right is thus irrelevant andinadmissible in such trial. [33] Pulling one’s arm away, taking a combative stance and failing to comply with commands, for the purpose of resisting arrest by afishery officer who is conducting a lawful inspection, has formed reasonable and probable grounds to arrest and has advised a personthey are under arrest for an offence under the FA, constitutes the offence of obstruction of carrying out the officer’s duties under the FA.

Kristopher Nichols actions establish, beyond a reasonable doubt, his intention to obstruct the officer’s attempt to arrest him. [34] All of the officers were well trained but had few, if any, had previous encounters with physically resistant fishers.

I find it wassubjectively and objectively reasonable for officers Conley and Bromwich to conclude Kristopher Nichols was actively resisting arrestand potentially assaultive having pulled away twice, braced himself on the boom and raised his fist while clearly angry and highlyagitated. [35] The officers involved in the arrests were extensively cross examined on their training and understanding of the National Use ofForce and Officer Safety Policy and the Incident Management Intervention Model.

They were also questioned in detail about how andwhy they applied their training in use of force in the circumstances of this matter. I find the techniques and tactics employed by theofficers were consistent with their training.

[ 36 ] The photograph taken of Kristopher Nichols immediately after his arrest does not depict any red marks, abrasions or other indicia consistent with his face forcefully coming into contact with the hatch cover. It is of note that he was wearing wet weather gear, a foamy vest style flotation device and a toque. There is only one injury alleged which would have been from one of the two strikes to the right side back of his head near his ear.

This would indicate that the force of the first two blows was not sufficient to have caused a mark or bruise. [ 37 ] The officers were authorized by law to conduct the inspection and to arrest the accused. Officers Conley and Bromwich had reasonable grounds to believe the use of force was necessary to bring Kristopher Nichols under control. The application of force was proportionate, reasonable and necessary in the circumstances and in accordance with their training. I find the strikes to Kristopher Nichols head involved no more force than was necessary to obtain compliance with the demand for Mr.

Nichols move his hands out from under his body to allow him to be handcuffed. The handcuffing of Charles Nichols does not constitute excessive force. It was reasonable and no more force was used that was necessary to apply the handcuffs. CONCLUSION [ 38 ] I find Krisopher Nichols guilty on counts 1 to 6. [ 39 ] I find Charles Nichols guilty on counts 1 to 5. _____________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia