R. v. Hodson Date:, 2011 BCPC 243

Citation: R. v. Hodson Date: 20110922 2011 BCPC 0243 File No: 213239 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PETER ANDREW HODSON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: Joseph C. Bellows, QC Counsel for the Defendant: Vincent Michaels Place of Hearing: Vancouver, B.C. Dates of Hearing: June 1-3, 13; July 13, 26, 2011 Date of Judgment: September 22, 2011 A corrigendum was released by the Court on September 22, 2011; the corrections have been made to the text and the Corrigendum is appended to this document.

INTRODUCTION [ 1 ] The Accused, Peter Andrew Hodson , has entered a guilty plea to a charge that between December 4, 2009, and April 20, 2010, at the City of Vancouver, British Columbia, he did traffic in cannabis marijuana contrary to s. 5(1) of the Controlled Drugs and Substances Act .

The Accused has also entered a guilty plea to a charge that between December 4, 2009, and April 20, 2010, at the City of Vancouver, British Columbia, while being a member of the Vancouver Police Department, he did commit a breach of trust in connection with his duties by trafficking in cannabis marijuana, contrary to s. 122 of the Criminal Code .

Lastly, the Accused also entered a guilty plea to a charge that on December 31, 2009, at the City of Vancouver, British Columbia, while being a member of the Vancouver Police Department he did commit a breach of trust in connection with his duties by improperly accessing the Police Records Information Management Environment (PRIME) to obtain details of an arrest for improper purpose contrary to s. 122 of the Criminal Code . [ 2 ] The Accused must now be sentenced in relation to his criminal actions. DETAILED BACKGROUND [ 3 ] The facts surrounding the three offences are not largely in dispute.

Crown Counsel filed a comprehensive

summary of the

established facts upon which the pleas of guilty have been accepted. I have dis -abused myself of any facts in issue. [ 4 ] On May 26, 2005, when the Accused was 27 years of age, he swore an Oath of Office as a police constable for the City of Vancouver. The oath was sworn before then Acting Chief Constable Bob Rich.

The oath taken by the Accused reads as follows: I Peter Andrew Hodson will well and truly serve our Sovereign Lady the Queen, her heirs and successors according to law, in the office of Police Constable for the City of Vancouver without favour, affection, malice or ill will; and that I will, to the best of my power, cause the peace to be kept and preserved, and will prevent all offences against the persons and properties of Her Majesty’s subjects; and that while I continue to hold the office I will, to the best of my judgement, skill, knowledge, and ability, carry out, discharge, and perform all the duties of my office faithfully according to law, so help me God. [ 5 ] In February of 2010, the Vancouver Police Department received information from a downtown eastside resident and drug addict by the name of Tyson Pappas (Pappas) that the Accused was engaged in criminal activity in the downtown eastside.

As a result of that information the Vancouver Police Department began an exhaustive investigation on February 19, 2010, involving numerous police resources into the information provided by Pappas. [ 6 ] The informant Pappas had been a resident of the downtown eastside for approximately 12 years and was heavily addicted to crack cocaine and oxycontin . His daily drug habit was approximately $100.

To support his drug habit, Pappas engaged in criminal activity and the Court was advised by Crown Counsel that Pappas had an extensive criminal record dating back to 1972 which included seven convictions for drug dealing. [ 7 ] In addition, Pappas suffered from schizophrenia, bipolar, depression and mood disorders. Pappas as well had been diagnosed with post traumatic stress disorder stemming from physical and sexual abuse at the hands of his mother as a young boy. [ 8 ] In the fall of 2009, the Accused approached Pappas to recruit him as a police informant.

The relationship between Pappas and the Accused was described as a casual “source” relationship. When the Vancouver Police Department Source Handling Unit found out that the Accused was using Pappas as a police informant, the Accused was directed by Sgt. Isaksson that he was to cease using Pappas as a source. The Accused failed to do so. [ 9 ] On December 4, 2009, the Accused met up with Pappas and asked Pappas if he would be interested in selling one half pound of marijuana. Pappas was interested.

The Accused then directed Pappas to get a new residence and a telephone. [ 10 ] On December 12, 2009, Pappas rented a room at the London Rooms on East Georgia Street. [ 11 ] On December 13, 2009, the Accused and Oscar Ducut Lapitan ( Lapitan ), also known as “Packman”, the co-accused in relation to the drug trafficking allegation, delivered a television set to Pappas. [ 12 ] On December 19, 2009, the Accused contacted Pappas and told him that he had a telephone for him and he instructed Pappas to attend the Westin Bay Shore that evening to collect the telephone.

The telephone was to be used for contact between the parties in relation to the selling of marijuana. Pappas attended at the Westin Bay Shore, where the Accused gave Pappas a telephone. The telephone was delivered to Pappas during the Vancouver Police Department’s Christmas party at the Westin Bay Shore. [ 13 ] The telephone was subsequently seized from Pappas by police investigators.

Evidence downloaded from the memory card revealed numerous contacts between the Accused and Pappas in furtherance of the drug trafficking alleged against the Accused. [ 14 ] The police investigation into the activities of the Accused also revealed a telephone contact number which was subscribed to a “Mr. Pete Hodson of 312 Main Street, Vancouver”. At that time, 312 Main Street was the Headquarters for the Vancouver Police Department. [ 15 ] On December 27, 2009, shortly after midnight of that date, the Accused sent a text message to Pappas which stated: “BTW ... I got the stuff tonight ... it’s AAA”.

Shortly after that, the Accused sent another text message to Pappas which stated: “Packman will be out in the next day or two”. It was the theory of the police investigators that Lapitan (“Packman”) would be delivering the marijuana and that the marijuana was high grade hence the reference to AAA. [ 16 ] On December 29, 2009, the Accused delivered a mini fridge to Pappas at the London Rooms. At that time, the Accused told Pappas that he, Pappas, owed him $1,800 for the fridge. When Pappas opened the fridge he found a Ziploc bag containing approximately one half pound of marijuana.

The delivery of the mini fridge to Pappas by the Accused was confirmed by the rooming house video surveillance camera. [ 17 ] On December 31, 2009, at approximately 5:00 am, Pappas was arrested on an outstanding warrant by a Vancouver Police Department Officer. Incident to the arrest of Pappas, he was searched and police located on Pappas 23 grams of marijuana, along with $20 cash. Pappas was then arrested for possession of marijuana and transported to cells at 312 Main Street. The police investigator who arrested Pappas entered her report into PRIME.

Later that day, at approximately 2:00 pm, Pappas texted the following message to the Accused: “I just got bail.” [ 18 ] Police investigators also uncovered evidence that commencing on December 31, 2009, the Accused began using a new telephone number. At approximately 3:00 pm of that date, Pappas received a text message from the Accused’s new phone advising Pappas to call the Accused. This telephone was later seized.

Download information from the memory card of that telephone revealed a series of telephone calls between Pappas and the Accused. [ 19 ] The police investigation also revealed that on December 31, 2009, the Accused had been assigned to Police Unit 2C14, and that at approximately 4:55 pm, the police incident report entered into PRIME involving the arrest Pappas for possession of marijuana was queried by Police Unit 2C14 a total of six times. At approximately 5:00 pm on the same date, Pappas received a text message from the Accused’s new telephone number, which read as followed:

Just read the file… ur treating me like I’m fucking stupid. 23g and 20 dollars… its ok to say sorry and admit that u tried to play me.3 am expecting that phone call. I have done a lot for I so I am expecting that call. I can expect it…I just know what ur about now. [ 20 ] It was the theory of the Crown that the Accused had read the report entered into PRIME relating to the arrest of Pappas and that the Accused responded by sending a text message to Pappas claiming that Pappas had lied to him.

It was the Accused who accessed PRIME to review the entered report in relation to the possession of marijuana, and he used that information to confront Pappas about the marijuana that the Accused had provided to him contained in the fridge. [ 21 ] On January 5, 2010, camera surveillance of the London Rooms revealed that the Accused entered Pappas’s apartment at approximately 9:45 pm.

It also showed both parties leaving that room at approximately 10:00 pm of that date, and entering a further room at the London Rooms registered to another resident of the downtown eastside. [ 22 ] Further surveillance tape of the London Rooms revealed that the Accused attended the building in full uniform on January 16, 2010. The Accused left a message at the front desk instructing Pappas to call the Accused at his new number, which he subscribed on December 31, 2009. [ 23 ] In early January of 2010, Pappas was stabbed by a male person in an altercation.

Though unrelated to allegations against the Accused, Pappas remained concerned that he was stabbed as a result of his failure to provide money to the Accused relating to the marijuana from the fridge. I do not associate the stabbing to the Accused. [ 24 ] There were two significant events on February 19, 2010, which acted as catalysts for the investigation by the Vancouver Police Department into the activities of the Accused. On that date, Detective Gill was working a patrol shift with the Accused. During the course of the shift, Detective Gill became concerned over conversations he had with the Accused.

The Accused told Detective Gill that he was married with three children and his wife was pregnant with their fourth child. The Accused also indicated that he was involved in two extra marital affairs and that he was spending money taking the women on weekend get-a-ways. The Accused also told Detective Gill that his wife had found out about one of the extra marital affairs and that he had moved out and was renting a condominium which was costing him $1,000 per month. The Accused also told Detective Gill that he had two Blackberries, one of which he used for his infidelities.

As a result of these conversations, and other comments made by the Accused to Detective Gill, the above information was passed along by Detective Gill to his superiors. [ 25 ] On the same date, Pappas advised Detective Russell that he, Pappas, believed he was stabbed as a result of losing a half pound of marijuana given to him by a police officer to sell. Pappas identified the Accused as the police officer in question.

As a result of the information passed along to Detective Russell by Pappas, detectives commenced an investigation into the validity of the allegations made by Pappas. [ 26 ] On March 16, 2010, the Vancouver Police Department formed a special investigation unit to conduct an investigation into the activities of the Accused in relation to the allegations made by Pappas and concerns raised by Constable Gill. [ 27 ] On March 19, 2010, Pappas was re-interviewed.

During the course of that interview, investigators determined that they could further the investigation into the activities of the Accused by using Pappas as a police agent.

Pappas agreed. [ 28 ] As part of the investigation tools, investigators obtained a One Party Consent on April 1 and April 8, 2010, granting an authorization to intercept private communications pursuant to s. 185 of the Criminal Code and a Warrant to Observe by means of television camera or similar electronic device pursuant to s. 487.01(1) of the Criminal Code . [ 29 ] Between April 4 to April 15, 2010, investigators conducted ten scenarios that involved the purchase of marijuana by Pappas from the Accused, or his Co-Accused, Lapitan .

Each of these scenarios was subject to surveillance and audio recording by investigators. (

i) Scenario 1 (April 4, 2010) [ 30 ] On April 4, 2010, at approximately 3:35 pm, Pappas entered into a conversation with the Accused. At that time, the Accused was in full police uniform and was attending a patrol call as the wagon driver in the 100 Block of West Pender Street in Vancouver.

Pappas and the Accused spoke for approximately 10 minutes with much of the conversation respecting the Accused’s concern that Pappas owed him money for the marijuana that he had fronted to Pappas. [ 31 ] During the course of that conversation, Pappas told the Accused that he would try to pay $100 or so by the end of that week, to which the Accused responded: “the ball” is in your court. [ 32 ] During this contact, the Accused gave Pappas a piece of paper with the Accused’s new cell phone number.

The Accused then went on to tell Pappas that he had made “five grand” last week and that he was not “hurting”. (ii) Scenario 2 (April 5, 2010) [ 33 ] On April 5, 2010, Pappas called the Accused to tell the Accused that he had something to give to him. The parties agreed to meet. The objective of this scenario was for Pappas to give to the Accused $65 as payment towards his outstanding debt for the marijuana from the fridge. [ 34 ] At approximately 3:15 pm the Accused arrived at the planned meet. He was on duty, wearing full police uniform and driving a marked police wagon. Pappas gave the Accused $65 in cash.

There was also drug related conversation with Pappas during which Pappas requested that the Accused give to him an ounce of marijuana to sell. [ 35 ] There was further conversation about what the Accused was expecting from Pappas. During the course of that conversation, the Accused stated: “Well I’m gonna ask for all the money. Basically you took the fridge. It was full”. They came to an agreement that Pappas would work to pay off a debt of $1,000. The Accused also agreed to give Pappas an ounce of marijuana the next day to sell. The

meeting concluded with the Accused appearing to be apprehensive about working with Pappas as a result of which the Accused commented: I don’t know if you’re gonna be working for the cops now, or if you’re trying to set me up or, I don’t know. I’m just saying I don’t know that now right. (iii) Scenario 3 (April 6, 2010) [ 36 ] On April 6, 2010, at approximately 10:45 in the morning, the Accused telephoned Pappas and they arranged to meet at a parkade at approximately 1:00 pm. The Accused was parked at the arranged parkade when Pappas arrived on foot.

The Accused told Pappas that he wanted $200 for the one ounce of marijuana and he did not care how Pappas sold it. The Accused was off duty at that particular time. [ 37 ] The Accused told Pappas that the marijuana was under his vehicle and that he could get it after he left the parking stall. When the Accused pulled away from the parking stall, Pappas seized a plastic baggie containing marijuana. (iv) Scenario 4 (April 6, 2010) [ 38 ] On April 6, 2010, in mid-afternoon, various text messages were communicated between the Accused and Pappas. They agreed to meet at a local MacDonald’s Restaurant in Yaletown .

At approximately 8:30 pm, Pappas met with the Accused at the MacDonald’s Restaurant. The Accused was in full uniform and driving a marked police car. [ 39 ] Pappas gave the Accused $200 (planted) for the marijuana that he received from the Accused earlier in the day at the parkade . Pappas also told the Accused that the target who purchased the marijuana was happy with the quality and wanted more. There were further conversations between Pappas and the Accused over pricing for the marijuana, as the Accused felt that Pappas should be charging $240 for each ounce.

During the course of this conversation, the Accused agreed to give to Pappas two further ounces of marijuana for resale with the admonition that he not sell it “under value”. [ 40 ] There were further conversations over difficulties Pappas was experiencing in breaking down each ounce. The Accused responded that Pappas should “eye ball it”. There were also discussions concerning the quality of the marijuana. The Accused responded: “Oh it’s good shit”. [ 41 ] It was agreed that of the two ounces, one ounce would be sold for $230 and that Pappas could keep $30 of that sale.

The Accused then told Pappas to “nickel and dime” the other ounce, as Pappas could make more money that way. It was agreed that the Accused would bring the two ounces on the Thursday evening when the Accused would be coming into Vancouver at around 6:00 pm. (

v) Scenario 5 (April 8, 2010) [ 42 ] On April 8, 2010, at around noon of that day, Pappas texted the Accused enquiring if they were still on for 6:00 pm. Shortly thereafter, the Accused called the Co-Accused Lapitan . That call lasted approximately two minutes.

Approximately 18 minutes later, the Accused texted Pappas with the following message: “Yep packman has it and will drop it off or u can meet him in Yaletown , I’ll let u know”. [ 43 ] At approximately 1:00 pm there were a series of text messages and telephone calls between Pappas, the Accused and Lapitan with the arrangement being that Pappas would meet Lapitan at the MacDonald’s Restaurant in Yaletown at 4:00 pm for the drug exchange. At approximately 4:00 pm, Lapitan drove into the parking lot of the MacDonald’s Restaurant.

Pappas met with Lapitan and Lapitan provided Pappas with a Safeway bag containing marijuana. (vi) Scenario 6 (April 6, 2010) [ 44 ] On April 6, 2010, following a series of text messages between Pappas and the Accused, it was agreed that the two would meet shortly after noon at the Yaletown MacDonald’s Restaurant. The Accused arrived in his personal vehicle at the restaurant and met with Pappas. Pappas told the Accused that he had $400 (planted) for him.

After some discussion, it was agreed that the $400 would cover the $360 for the two ounces of marijuana and that the remaining $40 would go toward the debt owed by Pappas to the Accused which debt, in the words of the Accused, now stood at $895. [ 45 ] There were further discussions over amounts that Pappas would be able to charge for the sale of marijuana and the location where the dealing would take place. Pappas told the Accused that his contact wanted more ounces. This seemed to please the Accused. There was also discussion about location for dealing.

Pappas told the Accused that he was selling in the area of the Art Gallery on Granville Street. The Accused cautioned Pappas about selling the marijuana downtown. [ 46 ] Pappas told the Accused that his contact who wanted to buy ounces was reliable and that this person “loved” the marijuana that he purchased. The Accused then asked Pappas: Do you have your phone still, D’ya need business cards? cause if you get business cards, not ta people in the skids, but on Davie Street – won’t that be good for you?

Pappas responded by telling the Accused that he was not ready for that yet and that he wanted to keep it slow and pay off the debt to the Accused. [ 47 ] Scenario 6 played over into April 10, 2010, in which there was further contact by way of text messaging between Pappas and the Accused. As a result of those messages, the Accused telephoned Pappas in the late afternoon. During the course of that conversation, Pappas confirmed that he had sold everything that was given to him. The Accused asked Pappas if he wanted three more ounces. Pappas replied in the affirmative.

[ 48 ] The Accused then telephoned an individual known as “Jamie” on April 11, 2010, in the afternoon. During the course of that conversation, the Accused told “Jamie” that he wanted to buy more marijuana. “Jamie” responded by telling the Accused that he had some “medium stuff”. It was agreed that the Accused would purchase one pound for $2,000 from “Jamie” the next day in Langley. The Accused then sent Pappas a text message telling him that he would have the marijuana the next morning.

The Accused then telephoned Lapitan instructing him to go to the bank first thing in the morning to get money for the purchase from “Jamie”. [ 49 ] The next morning, April 12, 2010, there were a series of text messages and telephone calls between the Accused and Lapitan , during the course of which Lapitan indicated he could only get $5,000 dollars for the Accused, but he could get the rest in a couple of days.

There were further drug related conversations between Lapitan and the Accused. [ 50 ] While the Accused was communicating with Lapitan by way of text messages on April 12, 2010, he was at the Vancouver Police Department’s employee doctor’s office. At 11:52 am of that day, the Accused sent a text message to Pappas which stated: “I have to bag then we can meet. See u in 20 minutes”. (vii) Scenario 7 (April 12, 2010) [ 51 ] On April 12, 2010, at around 12:20 pm in the afternoon, the Accused met Pappas at the Yaletown MacDonald’s Restaurant.

At that time, the Accused placed three Ziploc baggies containing marijuana into the backpack of Pappas. He also gave him a scale commenting: “I got a scale for you because I am so sick of ... of weighing it an shit…so 3 ounces”. Pappas then gave $220 (planted) to the Accused explaining that $20 of that was to go towards his debt. [ 52 ] During this meeting, the Accused also gave a number of small Ziploc baggies to Pappas. The Accused told Pappas that he still owed him $875 and that the marijuana he had given to Pappas was not premium .

In relation to retail value, the Accused told Pappas: “So this stuffs gonna sell for 35 no problem and you have a scale now”. There was some further discussion about the Accused providing more marijuana to Pappas for sale. (viii) Scenario 8 (April 14, 2010) [ 53 ] On April 14, 2010, at approximately 6:30 in the evening, the Accused drove his personal vehicle to the Yaletown MacDonald’s Restaurant. Lapitan was in the front passenger seat. Pappas entered the rear seat. Pappas gave the Accused $590 in change and bills (planted). The three then drove off and parked at a local parking lot.

At that time, Pappas told the Accused that his contact in the west- end who “loved” the ounces that he was purchasing wanted more, including up to a half pound. Pappas gave the Accused a piece of paper with the licence plate number on it, telling the Accused that it belonged to his west-end contact if the Accused wanted to check this person out.

There was further conversation between the Accused and Pappas over pricing for a half pound of marijuana for the west-end contact versus pricing in ounces. [ 54 ] It was eventually agreed between Pappas, the Accused and Lapitan that Pappas would meet the west-end contact the next day for the sale of the half pound of marijuana. [ 55 ] It was agreed that the Accused would receive $1,500 of the $1,600 sale of the half pound to the west-end contact.

The meeting concluded with Pappas receiving a further two ounces of marijuana from the trunk of the Accused’s vehicle. (ix) Scenario 9 (April 15, 2010) [ 56 ] In this scenario police investigators used an undercover operator. Pappas was instructed by police investigators to facilitate the one half pound deal with the Accused using Lapitan and the undercover operator. [ 57 ] In the afternoon of April 15, 2010, the undercover police operator, with Pappas, drove to the Yaletown MacDonald’s Restaurant where they met Lapitan in the parking lot.

At that time, Lapitan gave a bag to Pappas, which Pappas delivered to the undercover police operator. Pappas received $1,600 for the purchase of the half pound of marijuana. Pappas then returned with the money to Lapitan’s vehicle where they counted out the cash. Following that, Lapitan called the Accused on his telephone to confirm with the Accused that the deal had been completed. There was then a discussion as to how the money was to be applied. [ 58 ] The following day there was a further telephone conversation between Pappas and the Accused.

Pappas told the Accused his contact wanted more marijuana but, while his contact liked the marijuana, it was not as good quality as the first marijuana purchased. In response, the Accused stated: I know, I know. Did you tell him that or did he just realize that now, does he want the best or what does he want, cause then I can make sure I can get it to him if he is going to be good customer. What’s more important to him quality or price ? ( emphasis added) (

x) Scenario 10 (April 15, 2010) [ 59 ] On April 15, 2010, at 11:15 pm, the Accused met with Pappas and the undercover operator at the Yaletown MacDonald’s Restaurant. The Accused told the undercover operator that he had only brought three ounces. The undercover operator was satisfied with the three ounces at that time. [ 60 ] The undercover operator and the Accused went to the Accused’s vehicle where the Accused motioned to the police operator that the marijuana was under a blanket in the vehicle. There was then a discussion over the possibility of the Accused moving a half pound of marijuana on a weekly basis.

The Accused responded by: “That’s fuckin good ... ”. [ 61 ] There was also discussion with respect to quality and cost for the half pound. It was proposed by the undercover operator that he pay $1,500 dollars for each half pound. The Accused wanted to know whether or not that would be the price for the “good stuff”. The undercover operator told the Accused that he wanted the “good stuff” every week and asked the Accused if he could guarantee it was the “good stuff”. The Accused responded in the affirmative.

[ 62 ] The undercover operator then paid $200 for the marijuana that the Accused had in his vehicle and confirmed with the Accused that their arrangement would be for the sale of a half pound of the “good stuff” each Friday for $1,500. [ 63 ] All monies that Pappas gave to the Accused had been provided to him by police investigators. The serial numbers of all bills had been pre-recorded for evidentiary purposes.

All of the marijuana given by the Accused to Pappas in the scenarios was delivered to police investigators. [ 64 ] The quantity of marijuana provided by the Accused to Pappas in scenario 2 and scenarios 5 through 10 is 20 ounces with an estimated street value of $5,630. [ 65 ] When the Accused delivered the fridge to Pappas on December 29, 2009, that fridge contained one half pound of marijuana with a weight of 28 ounces and an estimated street value of $7,900. [ 66 ] The Accused was arrested on April 21, 2010, and was immediately fired from his position with the Vancouver Police Department. [ 67 ] On April 20, 2010, pursuant to a search warrant, Vancouver Drug Squad Members conducted a search of the Accused’s home in White Rock.

Located in the residence was a digital weigh scale, plastic baggies and cash. Police investigators compared the cash seized to the pre-recorded serial numbers and found that a total of 49 individual serial numbers were a match. [ 68 ] The Accused remained in custody for 14 days when he was then released upon conditions of bail on May 10, 2010. MATERIALS FILED IN SUPPORT OF THE ACCUSED [ 69 ] Upwards of 40 character reference letters were filed with the Court. Those letters of support came from family members, friends and acquaintances of the Accused.

It was a common theme in the letters of support that those who provided letters of support were “shocked” by the criminal actions of the Accused. [ 70 ] Notwithstanding, those letters all described the Accused as a caring and loving father to his children and demonstrated that the Accused was a person of prior good character. [ 71 ] The letters of support revealed that the Accused had accepted responsibility for his actions.

The letters of support from family members also demonstrated that the Accused enjoyed the support of a caring and loving family and that he would continue to enjoy the love and support of his family, notwithstanding his criminal actions. [ 72 ] Many of the letters of support addressed the community involvement of the Accused through his volunteer work.

In particular, many of the letters of support made reference to the fact that the Accused had volunteered a great deal of time to community activities, including coaching with the Developmental Youth Basketball team in South Surrey. [ 73 ] Richard Barclay, a member of the Board of Elders at Peace Portal Alliance Church, noted that the Accused exhibited “leadership and integrity”. At the invitation of Mr. Barclay, the Accused accompanied him and others on a humanitarian focus mission to Uganda, Africa.

Upon his return from Africa, the Accused established a charitable foundation called “Under the Reading Tree” which raised funds for libraries and literacy programs in Africa. [ 74 ] Others also noted that the Accused was a regular attending church member. He was described by many, including his wife, as committed to his personal reformation and rehabilitation. [ 75 ] Ryan and Kristin Visscher noted in their letter of support that the Accused had told them that he was “grateful” that he was apprehended.

They go on to note that his apprehension by the police with respect to his criminal activities had given him perspective and opportunity to realign his life and priorities. [ 76 ] Overall, the letters of support were indeed impressive and demonstrate that the Accused enjoyed extensive support within his social and familial community. [ 77 ] Defence Counsel also relied heavily upon a report prepared by Dr. Michael Elterman , a Clinical and Forensic Psychologist. Dr.

Elterman was retained by Defence Counsel to assess the Accused from a psychological perspective to address why someone with an apparently pro-social background and record would commit such serious criminal offences. [ 78 ] Dr. Elterman met with the Accused on four occasions for one hour. He also had the Accused perform a Personality Assessment Inventory, which formed a significant basis of his report. [ 79 ] The thrust of Dr.

Elterman’s opinion contained in his report is that the Accused was extremely bored with his employment as a police officer and that the Accused personally admitted that he was: “terrible with authority”. [ 80 ] In relation to the presentation of the Accused, Dr. Elterman noted in his report the following: Mr. Hodson presented as an outgoing but cautious man, alert, articulate and clearly with strong narcissistic tendencies.

Asked what appealed to him about entering the police, he said that it was not the status, but rather the potential for excitement as he is someone who has always been attractive to the adrenaline rush. [ 81 ] Dr. Elterman also gave the opinion from his interviews with the Accused that his narcissistic element was a significant feature in his profile. On this point, Dr. Elterman gave the following opinion: Mr. Hodson says that he grew up in a good family and has more or less done whatever he has been told by his family and society.

There was, however, a constant undercurrent of some resentment about being told what to do and how to live. In some way his acting out was

rebellion against this and a desire to take re-control over the domain of his life. This, together with the strong narcissistic element plus a strong desire for risk taking and excitement led to his criminal behaviour. [ 82 ] In relation to the Personality Assessment Inventory testing results, the criminal profile revealed that the Accused had a high measure of impulsivity and that his impulsive behaviour and thrill seeking, coupled with alcohol use, impaired his already suspect judgement. On this point, Dr.

Elterman commented in part as follows: His behaviour is also likely to be reckless and impulsive and he can be expected to entertain risks that are potentially dangerous to himself and to those around him. He reports that his use of alcohol has a negative impact on his life. [ 83 ] In relation to his concluding opinion, Dr. Elterman confirmed that the Accused clearly was a paradox. As to a clinical explanation for his criminal actions, Dr.

Elterman in his report, in part, had this to say: In addition to the strong need for excitement and low tolerance for boredom, there were certainly an aspect of narcissism in his personality makeup. This allows him to feel that he can get away with things that others can’t, that he has a disconnect between his own needs and those of others, and the need to maintain an inflated self image. There is no doubt that his infidelity and his perception of himself as an outlaw served much of these needs. [ 84 ] At the request of Crown Counsel, Dr. Elterman was called as a witness for cross-examination on his report. Dr.

Elterman was extensively cross-examined by Mr. Bellows on July 13, 2011. [ 85 ] The impact of his evidence given at hearing will be assessed in the Analysis

Section of this Judgment. CIRCUMSTANCES OF THE ACCUSED [ 86 ] The Accused was born on August 21, 1978, and is now 33 years of age. He comes from a caring and supportive family and grew up in the White Rock area. The Accused was active in sports as he grew up and his love of sports carried over to his volunteer work in coaching. He appeared to enjoy a well balanced upbringing and there does not appear to be any issues with respect to rebellious behaviour or alcohol or drug abuse. [ 87 ] The Accused completed high school and then moved on to Langara College where he studied Kinesiology.

From Langara College he transferred to UBC and received a degree in Kinesiology. [ 88 ] The Accused was motivated to start his own construction company which he operated for approximately two years. It is clear that he has considerable vocational skills in that capacity. [ 89 ] Though successful in his construction trade, the Accused sought further excitement and determined that joining the Vancouver Police Department would provide that excitement.

To that end, the Accused attended the Justice Institute in 2005, and in May of 2006, when he was 27 years of age, he swore his Oath of Office as a police constable for the City of Vancouver. [ 90 ] In relation to his personal family background, he is the father of four young children. His wife, Sarah, was his high school sweetheart. They were married in 2001. [ 91 ] The Accused appears to be committed to his family and to family values.

He is apparently attending church regularly with his family and is working hard within the construction industry to support his family. [ 92 ] The Accused apparently has overcome any alcohol dependency issues and there is no suggestion of any drug addiction. [ 93 ] As noted in the letters of support, and as submitted by Counsel on his behalf, the Accused has dedicated a great deal of his time to volunteer work within the community in the White Rock area and abroad with respect to his volunteer work in Africa.

His willingness to volunteer his free time has not been diminished by these offences. [ 94 ] Through Defence Counsel the Accused did not minimize his involvement in extra marital affairs. Those affairs did have a profound impact on his marriage, but after his apprehension by the Vancouver Police Department in relation to these charges he has realigned himself with his wife and his family and his present home environment appears to be solid. [ 95 ] The Accused spent fourteen days in custody before being released on strict conditions of bail.

Since his release from custody there have been no breaches in relation to his bail, thus, demonstrating compliance with bail conditions. POSITION OF THE PARTIES [ 96 ] Crown Counsel submitted that a fit and just sentence on the drug trafficking charge would be a period of three and a half years in custody.

On the charge of breach of trust in relation to trafficking in marijuana, Crown Counsel submitted that a concurrent sentence of three and a half years should be imposed. [ 97 ] In relation to the charge of breach of trust in connection with the Accused’s accessing PRIME, Crown Counsel submitted that a fit and proper sentence would be a six months concurrent sentence. [ 98 ] In mitigation, Crown Counsel noted that the Accused was a young man with no criminal record and that he does enjoy the strong support of family and friends. [ 99 ] Crown Counsel confirmed that the entry of the guilty plea would be in mitigation, though noted that the case for the Crown was, in any event, strong. [ 100 ] However, Crown Counsel takes the position that the aggravating circumstances were so egregious that they far outweighed any

of the mitigating circumstances. In particular, Crown Counsel noted that the Accused was in a high position of trust and authority and that he breached that trust and authority through his criminal actions. [ 101 ] Crown Counsel further submitted that the actions of the Accused were not “spur of the moment” actions, but actions that were planned and premeditated in which the Accused recruited Pappas to act as a dealer for him of marijuana. [ 102 ] In relation to that planning and premeditation, Crown Counsel noted that the Accused provided a telephone to Pappas and directed that he secure other accommodation.

In addition, the Accused did not act alone as he was acting in concert with Lapitan and he also had a source of marijuana. [ 103 ] It was submitted that when one examines the context of the actions of the Accused, he was clearly involved in criminal activity for the “long haul”.

In relation to that commitment, it was submitted that it was not excitement, nor narcissistic behaviour that drove the Accused, but rather, profit as he was clearly experiencing personal financial difficulties as a result of his infidelities. [ 104 ] It was also emphasized that the criminal actions of the Accused took place at times when he was on duty in uniform as a police member.

As well, it was noted that the Accused’s activities were taking place within his own beat in the downtown eastside and that the target of his actions were vulnerable drug addicts within that community. [ 105 ] Crown Counsel further submitted that as a result of its cross-examination of Dr. Elterman , the impact of the psychologist’s report was significantly undermined with respect to opinions rendered by him. In particular, Dr.

Elterman had not been provided with the report to Crown Counsel, nor was he aware that the Accused had pleaded guilty to two rather than one count of breach of trust, when he prepared his report. [ 106 ] Crown Counsel submitted that Dr.

Elterman essentially relied upon the self reported information provided by the Accused and that there were no collateral contacts to confirm information provided and, therefore, if the Accused wished to manipulate his Personality Assessment Inventory, he indeed could. [ 107 ] In support of the Crown’s position, Crown Counsel reviewed various sentence authorities involving police officers convicted of various criminal offences.

Those authorities are indexed at Appendix A to this Judgment. [ 108 ] Defence Counsel takes the position that a fit and proper sentence from a general deterrence aspect would be the imposition of a Conditional Sentence pursuant to s. 742.1 of the Criminal Code , with highly restrictive conditions essentially amounting to house arrest, coupled with 240 Community Work Service Hours. [ 109 ] Defence Counsel submitted that the allegations were indeed extremely serious, but that the Accused ended up committing the offences, in large measure, as a result of his frenetic lifestyle which developed through the fall of 2009 and into 2010.

Coupled with that frenetic lifestyle was the need for the Accused to thrill seek . It was this thrill seeking aspect of his personality and not the profit motive which drove the Accused to commit his criminal actions. [ 110 ] It was further submitted that the Accused was not involved in trafficking in a hard drug, but rather, a

Schedule II drug which did not exceed three kilograms in total weight, and that the maximum potential penalty would be five years in prison.

On this point, it was submitted that really, at the end of the day, the amounts involved were at best modest. [ 111 ] In relation to specific deterrence, Defence Counsel submitted that the very public arrest of his client, the publicity that followed his arrest, his shaming in the media and being labelled as a “drug dealing cop” were all factors in which the Court should take into account. [ 112 ] Defence Counsel also submitted that a jail sentence to be served within an institution should be a sentence of last resort absent a mandatory minimum jail sentence.

The time that the Accused would spend in custody, if sentenced to a jail sentence, would be “hard time” for the Accused. [ 113 ] Defence Counsel also noted the impressive character reference letters filed on behalf of the Accused. It was submitted that those character reference letters clearly establish the prior good character of the Accused and that they also demonstrate the positive rehabilitation steps taken by the Accused in relation to his personal reformation. [ 114 ] In relation to Dr. Elterman’s report and evidence given by Dr.

Elterman , Defence Counsel submitted that his opinion that the Accused would benefit from a Conditional Sentence should be given significant weight. [ 115 ] Defence Counsel also reviewed with the Court a variety of cases involving persons in positions of trust who committed criminal acts but, nonetheless, received a range of sentences from a Conditional Discharge through to a Conditional Sentence Order. [ 116 ] In particular, Defence Counsel drew the Court’s attention to the decision of the Supreme Court of Canada in R. v.

Bunn in which a lawyer who converted trust monies to his own use was originally sentenced by the Manitoba Court of Queen’s Bench to a sentence of two years in prison. Following the imposition of the two year sentence, the Conditional Sentence regime as contained in the Criminal Code came into effect. On appeal to the Court of Appeal for Manitoba, this intervening factor was considered meritorious to justify a reduction in the sentence to a Conditional Sentence of two years less one day.

That sentence was upheld by the Supreme Court of Canada as providing sufficient denunciation and deterrence and as being not disproportionately lenient. [ 117 ] The cases referenced by Defence Counsel are attached as Appendix B to these reasons. ANALYSIS (

i) General Sentencing Principles

[ 118 ] The sentencing regime is set out in s. 718 through s. 718.2 of the Criminal Code . It requires a balancing of numerous factors to ensure that sentences are fit and just having regard to the circumstances of the offence and the circumstances of the offender.

Section 718 through s. 718.2 read in part as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. ... 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, ... (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, ... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 119 ]

Section 742.1 of the Criminal Code deals with factors to be considered in relation to the imposition of a Conditional Sentence. That

section reads as follows: 742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 , the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. [ 120 ] In R. v. Wust , 2000 SCC 18 , the Supreme Court of Canada was called upon to rule on an issue in relation to a parliamentary imposed mandatory minimum sentence and the impact of time served in custody by an accused awaiting sentence in relation to a mandatory minimum sentence. In speaking for the Court, Madam Justice Arbour also addressed the approach to sentencing generally at para . 23 in the following language: ... in deciding on the appropriate sentence, the Court is directed by

Part XXIII of the Code to decide various purposes of principles of sentencing, such as denunciation, general and specific deterrence, public safety, rehabilitation, restoration, proportionality, disparity, totality and restraint, and to take into account both aggravating and mitigating factors.

The case law provides additional guidelines, often in illustrating what an appropriate range of sentence might be in the circumstances of a particular case ... [ 121 ] I find that in this case the circumstances require that the principles of denunciation and general deterrence contained in s. 718 of the Criminal Code must be paramount. Rehabilitation is also an important factor, but to a lesser degree. [ 122 ] In addition, I must balance the aggravating and mitigating circumstances as required by operation of s. 718.2 of the Criminal Code .

Ultimately, the sentence imposed must be a proportionate sentence by operation of s. 718.1 of the Criminal Code . (ii) Aggravating Circumstances [ 123 ] It is a significant aggravating factor that the Accused’s criminal actions took place while he was employed as a police officer with the Vancouver Police Department. At times, his criminal conduct took place while he was in police uniform, on duty and utilizing police resources including the use of his police vehicles and his access to PRIME.

[ 124 ] I find that it is also aggravating that he recruited Pappas to be his dealer for the sale of the marijuana. Pappas was clearly a vulnerable Downtown Eastside resident and one who would be psychologically overpowered by the Accused. [ 125 ] It is also aggravating that the Accused had a source for the supply of marijuana. Significant planning and premeditation went into his drug dealing activities. This was not a situation in which a police officer exercised poor judgement in the heat of the moment.

Rather, the actions of the Accused clearly established that he had full knowledge of the activities in which he was engaged, and that at the closing end of the police investigation, he indeed was quite prepared to escalate his criminal activity up to the potential movement of a half pound of marijuana on a weekly basis. [ 126 ] I further find that it is an aggravating circumstance that significant police resources were deployed to investigate the actions of the Accused. The Downtown Eastside of Vancouver is a unique and dynamic place.

However, it is also the case that the Downtown Eastside faces significant difficulties in relation to homelessness, mental and physical illness and drug addiction. Specialized police units have been created, such as the Beat Enforcement Team, to work tirelessly to assist the people of the downtown eastside and to tackle the chronic drug trafficking problems that are unfortunately part of the matrix of the Downtown Eastside.

Valuable police resources were distracted from their task within the Downtown Eastside through their investigation of the criminal actions of the Accused. [ 127 ] Though it was forcefully argued that it was the adrenaline rush or thrill seeking aspect of the Accused’s personality that drove him to commit his criminal actions, I find that it was a combination of thrill seeking or adrenaline rush coupled with profit motive which drove the Accused into his criminal activity.

I make the profit motive finding for the following reasons. [ 128 ] Firstly, the Accused consistently, using the parlance of drug dealing language, “ nickeled and dimed” Pappas to repay his debt in relation to the marijuana originally provided to him in the fridge. Scales were provided to Pappas along with cellular telephones. The Accused even suggested that Pappas should get business cards. [ 129 ] Secondly, the scenarios played out as described in the Detailed Background

section of these Reasons clearly establish that money was a constant theme in the conversations between the Accused and Pappas, Lapitan and the undercover police officer. I did not get a sense from the various scenarios that thrill seeking was the driving force as asserted by Defence Counsel. [ 130 ] Thirdly, I find that opinions reached by Dr. Elterman were significantly undermined through cross-examination by Crown Counsel. In particular, I note from cross-examination that Dr. Elterman did not have the benefit of the report to Crown Counsel in reaching his findings.

It would appear to be patent that the report to Crown Counsel would be an essential tool in assessing the psychological profile of the Accused. [ 131 ] In addition, cross-examination established Dr. Elterman did not consult with any collateral sources, including a counsellor that the Accused had retained after his release from custody. It was also established that Dr. Elterman did not speak to any family members to confirm information provided to him by the Accused. [ 132 ] Rather, Dr. Elterman relied upon the disclosures of the Accused.

In the preparation of his report he relied upon the Personality Assessment Inventory completed by the Accused. All of the information in the Personality Assessment Inventory was self reported by the Accused in response to various questions contained in the inventory. [ 133 ] Without question, I accept the opinion of Dr. Elterman that the Accused is a paradox. Perhaps the best measure of the Accused was found in the clinical notes prepared by Dr. Elterman when Crown Counsel noted a direct quotation provided by the Accused to Dr.

Elterman in which the Accused stated: I got away with cheating, lying and stealing all my life, so I thought I always would . (Emphasis Added) [ 134 ] I find that the Accused’s motivations in committing his criminal actions are those of an individual driven by a combination of thrill seeking and profit. His cheating, lying and stealing as self reported by the Accused underpins the explanation for his criminal actions.

Frenetic lifestyle, excessive use of alcohol, boredom and personal issues resulting in infidelity are factors that I have considered, but they do not depart from the fact that ultimately his actions are those of a person who knowingly committed criminal acts. (iii) Mitigating Circumstances [ 135 ] It is significant that the Accused entered a guilty plea at a relatively early time.

Notwithstanding a strong case for the Crown, the acceptance of responsibility by the Accused results in a significant cost saving to the state as a trial was avoided. [ 136 ] I also find that the guilty pleas establish the acceptance of responsibility by the Accused and that his future for rehabilitation is likely. This is especially so as demonstrated by the letters of reference in support of the Accused. [ 137 ] It is also mitigating that the Accused is a relatively young man, married and the father of four children.

Notwithstanding his current legal troubles, he has salvaged his marriage and has continued to support the family unit through gainful employment. [ 138 ] I have also taken into account the Accused’s willingness, both past and present, to volunteer his time to not only his local community but the world community by establishing the Under the Reading Tree Foundation in Africa. [ 139 ] At the conclusion of all submissions by counsel the Accused was invited to address the Court. The Accused apologised to the Court, his squad, his family and his friends for his criminal conduct.

I accept that apology as sincere and take it into account in the passing of sentence. (iv) Sentence to be Imposed [ 140 ] The Accused swore an Oath of Office as a Police Constable on May 26, 2005. The Accused breached that Oath in a startlingly egregious and audacious manner.

[ 141 ] Our Court of Appeal in R. v. Shaw and Glass , dealt with two police officers who were sentenced for serious property offences. The Court noted that police officers are not just ordinary people. In instances where a police officer commits a serious criminal act, the Court commented on the approach to sentence in the following language at para . 5: ... In the case of a police officer the sentences should be heavier. A police officer is in a position of trust and in a position where he can commit offences without arousing suspicion.

For example, the work of a constable on night patrol, as Shaw was most of the time, includes going onto private premises and checking doors and windows. The uniform he wears and the police car in which he drives about give him unquestioned access to places where the presence of any other person would arouse suspicion, and they make certain otherwise suspicious activities appear proper. Shaw flagrantly betrayed his trust to the public and his trust to the force whose uniform he wore.

His trust was to protect the public from criminals ... [ 142 ] In the case of Shaw , an original sentence of 18 months in prison was increased by the Court of Appeal to three years. In the case of Glass , an original sentence of one year in prison was increased to two years. [ 143 ] In R. v. Cusack , an RCMP Officer, while on duty, stole a large amount of money from a citizen during a police investigation in Nova Scotia. The accused in that case pled guilty to theft in Provincial Court. Crown Counsel did not seek a jail sentence of any consequence.

Accordingly, the accused in that case was sentenced to a one day jail sentence, plus probation for 24 months. [ 144 ] Notwithstanding the position taken by Crown Counsel at Provincial Court, the Crown appealed to the Nova Scotia Court of Appeal. The sentence was varied to nine months in prison. [ 145 ] The Nova Scotia Court of Appeal noted that police officers who commit offences are not just ordinary persons [like in Shaw and Glass ] but persons holding special authority in which the public trust is paramount.

At para . 14, the Court in part had this to say: In my opinion the paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who are given special authority by our law to deal with individualized members of society, and to deter such persons from acting in breach of their trust. ... [ 146 ] In addressing the approach to the passing of sentence on police officers, the Court at para.15 had this to say: The commission of offences by police officers has been considered on numerous occasions by the courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration. ... [ 147 ] In R. v.

Ryan , the accused RCMP officer was found guilty of trafficking in cannabis marijuana contrary to s. 5(1) of the Controlled Drugs and Substances Act . He was also found guilty of breach of trust in relation to his duties as a police officer contrary to s. 122 of the Criminal Code . [ 148 ] At the time of the offences, the Accused was a member of a high profile Street Team Unit tasked with the responsibility of investigating drug trafficking activities in the Tantallon district of Nova Scotia.

In circumstances not dissimilar to the circumstances to the case at bar, Ryan used a street level source for the sale of marijuana and hashish. The “source” disclosed this information to other police officers and the Halifax Regional Police commenced an investigation into the activities of Ryan. [ 149 ] An undercover operation was deployed in which an interception wire was part of the investigation tools. As the investigation into the activities of Ryan advanced, there were various meetings between the undercover operator and Ryan.

Various scenarios were played out, and at one point, Ryan was provided with four pounds of marijuana by the undercover operator for sale. Ryan ultimately trafficked the four pounds of marijuana to another undercover police operator and was shortly thereafter arrested. [ 150 ] Ryan, much like the Accused before me, had impressive letters of reference and appeared to come from a highly supportive family background.

It was the position of Defence Counsel for Ryan that a fit and just sentence would be the imposition of a Conditional Sentence Order. [ 151 ] In commenting as to the appropriateness of a Conditional Sentence Order, Goodfellow , J. at paras . 40 through 42 had this to say: 40 Where a conditional sentence in these circumstances is totally inappropriate and inadequate is that such would not be consistent with the fundamental purpose and principles of sentencing as set out in the Criminal Code . 41 Here we have a police officer sworn to uphold the law, conducting himself in criminal conduct of such a serious nature, conducted by the utilization of resources provided to him to uphold the law in a manner dramatically in opposition to his duty. 42 A unique feature of this case that does not exist in the multitude of cases reviewed is, not only did the offender engage in serious criminal activity over some period of time but, he did so in a manner fostering the very criminal activity he was assigned and dedicated to eradicate . (Emphasis Added) [ 152 ] Goodfellow J. went on to say that the imposition of a Conditional Sentence Order would promote disrespect for the law, rather than respect, at paras . 44 and 45, in the following language: 44 One of the basic directions of the Criminal Code is that the sentence should promote respect for the law.

A conditional sentence in the totality of circumstances here would in my view promote disrespect for the law. 45 The sentence must also be proportionate to the gravity of the offence. In this case the offender grossly abused his position of trust, believing his badge would shield him from the accountability of his criminal conduct. [ 153 ] Emphasising that general deterrence was paramount, the Court imposed a sentence of four years on Ryan.

[ 154 ] In R. v. Cook , Hill, J. of the Ontario Superior Court of Justice found Police Constable Cook of the Peel Police Department guilty after a lengthy trial of five offences, two of which were attempt to possess for the purpose of trafficking cocaine contrary to the Controlled Drugs and Substances Act and breach of trust contrary to s. 122 of the Criminal Code . The facts of the case can be distinguished in relation to the narcotics as they involved a

Schedule I drug rather than a

Schedule II drug. However, the decision of Hill, J. in Cook is useful in relation to the Court’s approach to breach of trust by a police officer who has committed serious criminal transgressions. In such circumstances, Hill, J. found that general deterrence and denunciation would be the driving principles in sentence. At para . 38 he had this to say: Quite apart from the police corruption offence in s. 122 of the Criminal Code , breach of a position of trust is a deemed aggravating factor in sentencing: s. 718.2 (a )( iii) of the Code .

General deterrence and denunciation drive the sentencing process in abuse of trust prosecutions. In the absence of an exceptional mitigating factor (e.g., addiction, see R. v. Lensen , [1994] O.J. No. 359 (C.A.) (QL) ), severe sentences are justified for police officer offenders to honour these sentencing principles.

Regard may be had to these judicial statements: In my opinion the paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who are given special authority by our law to deal with individual members of society, and to deter such persons from acting in breach of their trust. ( R. v. Cusack, supra , at para . 13) (approved, R. v.

Feeney et al., supra , at para . 8) [ 155 ] I conclude that where a police officer commits serious planned and premeditated criminal offences while in the line of duty, it would only be in rare and exceptional circumstances that a Conditional Sentence would be seen as a fit and just sentence. In this case, the Accused became completely disengaged from his moral and ethical duty to protect and serve. As noted earlier, the criminal actions by the Accused were egregious and the execution of his criminal plan audacious.

The Accused used his badge and his uniform to avoid detection and to promote the perpetration of his drug trafficking. Likewise, the Accused used his authority as a police officer to access highly sensitive information from PRIME. [ 156 ] I find that an imposition of a Conditional Sentence would be wholly inappropriate and would be entirely inconsistent with the fundamental purposes and principles of sentencing as set out in s. 718 to s. 718.2 of the Criminal Code .

In addition, the imposition of a Conditional Sentence would fall woefully short of properly addressing the paramount principles of general deterrence and denunciation. [ 157 ] The message must be clearly sent that police officers who knowingly engage in the types of activities committed by the Accused will face potentially severe penalties. The Accused knowingly embarked upon his predatory criminal activities with his eyes wide open.

He must have clearly appreciated the potential for serious consequences for his conduct. [ 158 ] I appreciate that a jail sentence would be a “hard time” sentence for the Accused, but currently the law in British Columbia establishes that such a consideration is not appropriate for a sentencing court, but rather, a consideration for Corrections authorities (see R. v.

Chand , at paras . 14 and 15). [ 159 ] I conclude that a fit and proper sentence for the Accused on Count 1 relating to drug trafficking is two years in prison. [ 160 ] In relation to Count 2 respecting the breach of trust committed by the Accused by trafficking in marijuana in the course of his duties there will be a concurrent two year sentence. [ 161 ] In relation to Count 3 relating to the Accused accessing PRIME to review the arrest information of Pappas, a consecutive sentence is mandated.

A Court cannot look, in these circumstances, with leniency when a police officer accesses sensitive police investigation systems to advance his own criminal activities. Accordingly, a consecutive sentence of one year is imposed. [ 162 ] The total sentence to be served by the Accused is three years in a federal penitentiary. [ 163 ] The Accused spent 14 days in custody following his arrest. I accept the submission of Defence Counsel that this was indeed “hard” time for the Accused. Apparently, the fourteen days that the Accused spent in custody were in segregation.

Accordingly, I am satisfied that the Accused would be entitled to receive credit for time served in custody on a one point five basis.

The Accused will be credited for twenty one days in custody to be applied to the one year consecutive sentence for breach of trust. [ 164 ] The Accused shall be required to provide a DNA sample pursuant to s. 487.051 of the Criminal Code in relation to Count 1, as the trafficking allegation is a primary designated offence. [ 165 ] Also in relation to the trafficking allegation, the Accused is prohibited from possessing those weapons and devices enumerated in s. 109 of the Criminal Code for a period of 10 years. __________________________________ The Honourable Judge G.M.

Rideout Provincial Court of British Columbia APPENDIX A Crown

R. v. Shaw, R. v. Glass (1968) (BC CA), 66 WWR 626 (BCCA) R. v. Cusack (1978), (NS CA), 41 CCC (2d) 289 (NSSC) R. v. LeBlanc (2003), 2003 NBCA 75 , 180 CCC (3d) 265 (NBCA) R. v. Ryan, 2004 NCSSC 173 R. v. Ferguson, 2005 ABPC 37 R. v. Boulanger, 2006 SCC 32 R. v. Gillan, 2009 BCPC 241 R. v. Cook, 2010 ONSC 5016 R. v. Domke, 2006 ABPC 252 R. v. English, 2008 QCCQ 5069 R. v. Chand (1994), (BC CA), 52 BCAC 301 APPENDIX B Defence R. v. Gladue, (SCC), [1999] SCJ No. 19 (SCC) R. v. Proulx, 2000] SCC 5 (SCC) R. v. Bunn, 2000 SCC 9 (SCC) R. v. Bhalru, 2003 BCCA 645 , [2003] BCJ No. 2695 (BCCA) R. v. Basi, 2010 BSCS 1622 (BCSC) R. v. Harvey, 2006] BCPC 444 (BCPC)

R. v. Dosanjh, [2006] No. 3375 (BCPC) R. v. Cronmiller, 2004 BCPC 1 , [2004] BCJ No. 7 (BCPC) R. v. Bambury, [2001] NSJ No. 222 (NSSC) R. v. Lepine, 2010 ABPC 374 , [2010] AJ No. 1344 (APC) R. v. Williams, [2004] OJ No. 3528 (On. C.J.) R. v. Cardinal, [2005] OJ No. 3678 (On. C.J.) R. v. Mohammed et al, 2008 BCPC 393 (BCPC) R. v. Gerow et al, 2006 BCPC 501 (BCPC) R. v.

Forsberg, [2005] BCJ No. 3141 (BCPC) CORRIGENDUM – Released September 22, 2011 In the Reasons for Sentence dated September 22, 2011, the following change has been made: [1] On page 32, paragraph 131, second line, the word “counsel” should be deleted and replaced with the word “counsellor” andshould now read as follows: [131] In addition, cross-examination established Dr. Elterman did not consult with any collateral sources, including a counsellor thatthe Accused had retained after his release from custody. It was also established that Dr.

Elterman did not speak to any family membersto confirm information provided to him by the Accused.