R. v. Nadeau Date:, 2016 BCPC 316

Citation: R. v. Nadeau Date: 20160624 2016 BCPC 316 File No: 201690-3 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KARALO NADEAU RULING ON APPLICATION OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R.N. HAMILTON Federal Crown Counsel: T.Spasojevic Counsel for the Accused: B. Jessop Place of Hearing: Surrey , B.C. Date of Hearing: June 22, 2016 Date of Judgment: June 24, 2016

[ 1 ] THE COURT : On April the 22nd, 2015, my former brother judge, now retired, Judge Hicks, had Karalo Nadeau before him for sentencing on two charges: trafficking crack cocaine and possession for the purposes of trafficking crack cocaine and heroin. Those charges dated back to September 5th, 2013 when police arrested Mr. Nadeau following an undercover sting operation. At the time, Mr. Nadeau was selling drugs by way of a dial-a-dope drug trafficking operation. [ 2 ] On September 5th, 2013, Mr.

Nadeau sold $80 worth of crack cocaine to an undercover police officer, and he was arrested shortly after the drug transaction was completed. As I have indicated, Mr. Nadeau came before Judge Hicks for sentencing on the two convictions. [ 3 ] In the sentencing hearing before Judge Hicks, the Crown sought a six-month jail sentence, and while I do not know this for sure, I infer that counsel for Mr.

Nadeau, who is not the counsel before me, sought the imposition of a suspended sentence with a period of probation. [ 4 ] At the conclusion of the sentencing proceedings, Judge Hicks imposed a suspended sentence along with a two-year period of probation. The probation order contained ten terms, only one of which is relevant to the matter before me, and that was a condition that Mr. Nadeau report to a probation officer as and when directed to report. [ 5 ] In imposing the suspended sentence and two years' probation, Judge Hicks concluded that Mr. Nadeau's circumstances were exceptional.

I am told that what Judge Hicks found to be exceptional was Mr. Nadeau's age and the fact that Mr. Nadeau's mother had recently been diagnosed with cancer. I mention Judge Hicks' finding of exceptional circumstances because at the time of the sentencing hearing a conditional sentence order was legislatively unavailable as a sentencing option.

A suspended sentence with probation operates, in many respects, as a conditional sentence order, provided the offender does not breach any of the conditions imposed by the terms of the conditional sentence order or the terms of the probation order. [ 6 ] If the offender breaches the terms of the conditional sentence order, the Crown would bring the matter back before the sentencing judge for a determination as to what to do; terminate the conditional sentence order and have the offender serve out some or the remainder of the conditional sentence in real jail, or reinstate the conditional sentence.

But as I have indicated, a conditional sentence order was statutorily not a sentencing option for Judge Hicks. Rather than sentencing Mr. Nadeau to jail, Judge Hicks suspended the passing of sentence and placed Mr. Nadeau on two years of probation. That sentence, as I have indicated, was imposed on April the 22nd, 2015. [ 7 ] About six weeks after Mr. Nadeau was sentenced, he breached his reporting term of his probation. He failed to report on June 12th, 2015. That was a date that had been set by his probation officer. On July 7th, 2015, Mr.

Nadeau was sentenced for that reporting breach to seven days' jail, time served, and he was placed back on the two-year probation order. [ 8 ] Thereafter, the Crown filed an application to revoke Mr. Nadeau's suspended sentence and sought to have imposed a sentence that could have been imposed at the time of the sentencing hearing before Judge Hicks. That Crown application was scheduled for hearing in early to mid-December 2015. Two months before that hearing, on October 5th, 2015, Mr. Nadeau again breached his reporting requirement and, not surprisingly, in light of his breach, Mr.

Nadeau did not appear in court on the date set to hear the Crown's application in December, 2015. That matter came before me as the administrative judge because Judge Hicks had then retired from our court. I issued a bench warrant for Mr. Nadeau's arrest and he was brought into custody in January, 2016. [ 9 ] On February 3rd, Mr. Nadeau was sentenced on the second reporting breach to 14 days in jail, time served, and he was released from custody and placed back on his probation order. As well, a new date was fixed, March 11th, 2016, to hear the Crown's application to revoke Mr. Nadeau's suspended sentence. Mr.

Nadeau failed to attend court on March the 11th, so again I issued a bench warrant for his arrest and he was arrested and brought into custody on April 13th, 2016. He has remained in custody since that date. The Crown application proceeded before me this past Wednesday, on June 22nd, 2016. [ 10 ] On this application, the Crown seeks an order revoking Mr.

Nadeau's suspended sentence and asks that I impose a six-month jail sentence which, according to our British Columbia Court of Appeal, is a jail sentence at the bottom end of the typical range of jail sentences that, that court says should be considered in dial-a-dope cases for offenders with no or a limited criminal record. That is a reference to the R. v. Voong case. [ 11 ] Mr. Nadeau reminds the court that Judge Hicks found as a fact that Mr. Nadeau had exceptional circumstances which led Judge Hicks to suspend the passing of sentence and impose the two years of probation. Before me, Mr.

Nadeau seeks a time-served sentence. I have had to re-do the math here, but it works out to 110 days; I am adding Wednesday and Thursday as additional days of pre-sentence detention, that gives him 73 days of actual time, plus, at one-and-a-half, would add another 37, and so 73 and 37 is 110 days, that is how I arrived at that number. Mr. Nadeau then suggests that I could place him back on the probation order imposed by Judge Hicks. [ 12 ] I have decided not to accede to Mr. Nadeau's proposed resolution of this issue.

Our Court of Appeal and many sentencing judges have commented on the scourge on society and the lives ruined by hard drugs on our streets. Dial-a-dope operations are particularly heinous because they make these dreadful, life-destroying drugs readily accessible to the addicted. The next drug fix is simply a phone call away. [ 13 ] I do not quarrel with Judge Hicks' finding that Mr. Nadeau's circumstances are exceptional, but my view is that Mr. Nadeau received the benefit of his exceptional circumstances when Judge Hicks suspended the passing of sentence on April 22nd, 2015. Thereafter, Mr.

Nadeau demonstrated that he cannot be relied upon to observe an important condition of his probation, reporting to his probation officer, which is needed in order to keep track of Mr. Nadeau while he is among us in society. [ 14 ] While I accept Mr. Nadeau's submission that once I have revoked the suspended sentence, then all sentencing options are available to me, I cannot ignore the Court of Appeal's clear statement that jail sentences of six to 18 months are within the appropriate range for first-time drug traffickers operating a dial-a-dope phone line.

In my view, imposing a sentence at the lowest end of that range will take into account Mr. Nadeau's young age and his personal circumstances with respect to his mother. A jail sentence in the range of six months should also serve to deter other offenders who are on probation, having received a suspended sentence, from breaching the

terms of their probation. Not only will they face a penal consequence for their breach if they are convicted, they will also face the likelihood of a jail sentence should the court revoke the suspended sentence. [ 15 ] Mr. Nadeau, if you can just stand up, briefly. [ 16 ] For those reasons, today I am going to revoke the suspended sentence imposed by Judge Hicks on April 22nd, 2015.

I will today impose a six-month jail sentence for your convictions of trafficking cocaine and possession for the purposes of trafficking cocaine and heroin. [ 17 ] You will receive credit of 110 days against the six-month jail sentence, leaving 70 days' jail left to serve. [ 18 ] Upon your release from custody, I am going to re-impose Judge Hicks' probation order which will expire April 21st, 2017, but I have to amend two of those terms. The first is condition 5, which is the reporting condition.

That condition will now read that you will report by 4:00 p.m. on the first business day following your release from custody, to the probation officer at the new address, which is suite number 102 - 14245 56th Avenue in Surrey, British Columbia, and you will report thereafter as and when directed to report by your probation officer. [ 19 ] The other condition that I am going to amend only slightly is condition 10. Condition 10 currently reads, you will abstain absolutely from the consumption of alcohol and non-prescription drugs, et cetera.

I am going to amend that to say you will abstain absolutely from the possession or consumption of alcohol and/or non-prescription drugs, et cetera. Otherwise, the remaining eight conditions will remain as they are in the original probation order. (DISCUSSION) [ 20 ] THE COURT: Following the jail sentence, I will place Mr. Nadeau on nine months' probation, and then I guess I will just read all of the terms into the record then.

Firstly, to keep the peace and be of good behaviour. [ 21 ] Secondly, to appear before the court when required to do so by the court. [ 22 ] Thirdly, to notify the court or the probation officer in advance of any change of your name or address, and promptly notify the court or your probation officer of any change of employment or occupation. [ 23 ] You will have no contact, directly or indirectly, with Jusdave Justin Dhaliwal. [ 24 ] Condition 5, you will report by 4:00 p.m. on the first business day following your release from custody to the probation officer located at suite number 102 - 14245 56th Avenue, Surrey, British Columbia, and thereafter as and when directed to report by the probation officer. [ 25 ] Reside where directed by the probation officer and not to change that residence without the prior written permission of the probation officer. [ 26 ] Condition 7, you will attend, participate in and successfully complete such counselling as directed by the probation officer. [ 27 ] Condition 8, you will complete, to the satisfaction of your probation officer, 25 hours of community work service.

Those will be completed by the end of February 2017. [ 28 ] You will seek and maintain employed, and/or attend any educational or vocational program if so directed by the probation officer. [ 29 ] Lastly, you will abstain absolutely from the possession or consumption of alcohol and/or non-prescription drugs, or those drugs as defined under the Controlled Drugs and Substances Act unless you hold a medical prescription or dental prescription for that substance. (RULING CONCLUDED)