R. v. Vickerson Date:, 2016 BCPC 204

Citation: R. v. Vickerson Date: 20160530 2016 BCPC 204 File No: 59932-2-C Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CONRAD JAMES RICHARD VICKERSON ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W.J. RODGERS Counsel for the Crown: M. Wiancko Counsel for the Defendant: D. Fai Place of Hearing: North Vancouver , B.C. Dates of Hearing: Oct. 21, 22, 23, 26, Dec. 10, 2015; March 2, May 30, 2016 Date of Judgment: May 30, 2016

[ 1 ] THE COURT: Conrad James Richard Vickerson comes before the Court for sentencing following a trial resulting in his conviction on the four counts set out in this Information. [ 2 ] In Count 1, he has been convicted of a charge that on or about the 20th of December, 2013, at or near the Resort Municipality of Whistler in the Province of British Columbia, he did unlawfully possess a controlled substance, to wit, cocaine, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 3 ] In Count 2, on that same date and place, he has been convicted of unlawfully possessing a controlled substance, MDMA, for the purpose of trafficking.

That charge is also contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 4 ] In Count 3, he has been convicted that on that same date and at that same place, he did unlawfully possess a controlled substance, to wit, BZP and TFMPP, for the purpose of trafficking. Again, that charge is contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 5 ] In Count 4, he has been convicted that on that same date and at that same place, he did unlawfully possess a controlled substance, THC.

That charge is contrary to 4(1) of the Controlled Drugs and Substances Act . [ 6 ] When the matter came before me for trial, counsel agreed on a statement of facts to form part of the evidence at the trial. The defence raised by Mr. Vickerson to the charges was based on alleged violations of his rights under the Canadian Charter of Rights and Freedoms . Vickerson opposed the introduction into evidence of certain of the evidence which was seized by the police during the investigation.

I found that some of the evidence obtained by the police during the course of their investigation ought to be excluded, but I concluded that other evidence could be admitted into evidence and that evidence formed a basis of the conviction. [ 7 ] In December of 2013, Mr. Vickerson was living in Whistler. The police began to suspect him of being involved in drug trafficking. They undertook surveillance of his residence and observed certain actions which led them to believe that Mr. Vickerson was indeed trafficking in narcotics. Following further investigation, a search warrant was obtained for the residence of Mr.

Vickerson. On December 20, 2013, the police conducted a search of Mr. Vickerson's vehicle, his residence, and also conducted a search of Mr. Vickerson at the time of his arrest. [ 8 ] When the police executed the search warrant at Mr. Vickerson's residence, they located a large safe. The police used keys seized from Mr. Vickerson to open the safe.

Inside the safe, the police located two bundles of Canadian currency with a value of $4,000, a package containing one gram of powdered cocaine, a bag of powder cocaine weighing 40 grams, a bag containing MDMA weighing 19.7 grams, a bag containing 33 pills of BZP and TFMPP, 100 plastic baggies, some empty pill capsules, and what is commonly referred to as a score sheet. [ 9 ] In the living room, police located four $20 bills, drug pipes containing marihuana residue, digital scales, a marihuana grinder, glass pipes, all of which items are associated with the consumption of illegal substances.

The items seized also support a conclusion that Mr. Vickerson was involved in the sale of illegal substances. [ 10 ] When Mr. Vickerson was searched at the time of his arrest, he was in possession of $360 in $20 bills. This sum was folded around a lighter in his possession. In his wallet, Mr. Vickerson had a further $93.20. When his truck was searched, police found a pipe suitable for the smoking of illegal substances and one gram of THC. [ 11 ] The Crown introduced evidence concerning the value of the drugs which were seized. The cocaine had an estimated value of between $1,500 to $2,100.

If this was sold on the street, the amount of cocaine, namely, 43 grams, could be worth approximately $3,400 when sold at the gram level. With respect to the MDMA, the 19.7 grams which was seized would have a street value of between $2,400 to $3,900. The tablets which were seized would have a value of between $330 to $1,300. [ 12 ] Crown counsel submits that the appropriate sentence would be a term of imprisonment of 14 months with respect to Counts 1, 2, and 3. With respect to Count 4, Crown submits that a sentence of 30 days' imprisonment would be an appropriate disposition.

All sentences are to be served concurrently, in the submission of the Crown. [ 13 ] Crown counsel further submits there should be a lifetime prohibition with respect to firearms, ammunition, and related items pursuant to the provisions of s. 109 of the Criminal Code . The Crown submits that a DNA warrant should be executed pursuant to the provisions of s. 487 of the Criminal Code . This is a secondary designated offence and the Court retains discretion with respect to the issuance of a DNA warrant.

The Crown further submits that there should be forfeiture of certain items seized by the police during the investigation and I will hear further from counsel concerning the forfeiture order. [ 14 ] I have had the advantage of reading the presentence reports prepared with respect to Mr. Vickerson. A report was prepared in March of 2015. Mr. Vickerson had been convicted of participating in a riot on the 15th of June, 2011, in Vancouver. This was the Stanley Cup riot. Following his conviction on the charges before me, a second presentence report was prepared. It was completed on the 20th of May, 2016. [ 15 ] Mr.

Vickerson was born on the [omitted for publication] 1986. He is 29 years of age. He presently lives in Abbotsford with his mother. His mother is present in court and supports him. [ 16 ] The presentence report sets out that Mr. Vickerson is employed doing general labour at a company called Employment Specialists. He has held that position since March 31st of this year. Between January and March of 2016, he was employed as a drywall apprentice. He was unable to continue that employment because he needed a vehicle in order to report to his place of business and various locations.

In 2014 and 2015, he worked polishing aluminum at a business in the Lower Mainland. [ 17 ] He has a criminal record. On the 15th of January, 2008, he was convicted of possession of a controlled substance contrary to s.

5(2) of the Controlled Drugs and Substances Act. He received a fine of $1,000 and the mandatory firearms prohibition order under s.109 of the Criminal Code. On that same date, he was convicted of driving while prohibited and received a $500 fine and the usual one-year driving prohibition. [18] In July of 2013, he was convicted of assault contrary to s. 266 of the Criminal Code. He received a conditional discharge andwas placed on probation for six months. That charge arose in a spousal relationship. [19] On the 30th of April, 2015, he was convicted of taking

part in a riot contrary to s. 65 of the Criminal Code. He received aconditional sentence of 120 days and probation for 12 months. His probation period under that charge has just expired. [20] The presentence report states as follows [as read in]: Prior to commencing his probation order, he successfully completed his conditional sentence order on August 27th, 2015. During histerm of supervision, Conrad has been reporting as directed and successfully completed his 50 hours of community work service. He wasreferred to the substance abuse management program in September of 2015.

He attended two of the 12 sessions and, due to lack ofattendance, he was removed from the program. His lack of compliance with programming was due to it interfering with his work. Conrad was then referred to the Abbotsford Addiction Centre to address his substance misuse. Conrad attended four group sessions inrelation to alcohol and drug counselling from November of 2015 to January of 2016.

If sentenced to community supervision for thecurrent offence, Conrad has indicated he is willing to abide by any conditions set by the courts including attending at any programmingor counselling if the court so orders. [21] In the presentence report, there is a

section entitled, "Attitude and Understanding Regarding Offence." The report sets out asfollows [as read in]: Conrad has been found guilty of the offences before the court. He accepts responsibility for his actions, but mentions he has no regrets. Conrad rationalizes his behaviour by making statements that include, "All drugs should be legalized and regulated," and, "The drug warshould be ended." He does not feel what he did was wrong and states, "There are too many bad people dealing drugs and the drug gameneeds a couple of nice people." [22] Crown points to three aggravating factors. First of all, cocaine, MDMA, and BZP, are

Schedule I drugs. The Courts havedenounced in the past the seriousness of persons trafficking in these

Schedule I drugs. [23] Secondly, it is an aggravating factor that Vickerson was in possession of these drugs for profit. These drugs were not for hispersonal use.

The money which was seized by the police was kept in a safe and the Crown also points to the relatively large quantity ofdrugs in the possession of someone who was essentially a street-level dealer. [24] The third aggravating factor pointed out by Crown counsel is that Vickerson has a previous conviction for possession of drugsfor the purposes of trafficking. [25] The Crown submits that the principles of sentence which should be given the most consideration are, firstly, specific deterrenceand, secondly, denunciation. [26] Counsel for Mr.

Vickerson submits that the appropriate disposition would be a suspended sentence followed by probation or,alternatively, a sentence of 90 days' incarceration to be served on an intermittent basis. Firstly, counsel points out that this is not a dial-a-dope case and the Court should not consider that the principles of sentencing set out in the dial-a-dope cases apply to Mr. Vickerson. [27] It is pointed out that Mr. Vickerson is relatively young at 29 years of age. He has left the Whistler lifestyle. He has maintainedemployment.

His present full-time employment has been confirmed by the probation officer who prepared the presentence report. Counsel for Mr. Vickerson submits that Mr. Vickerson has rehabilitated himself and falls within the exceptional circumstances whichare described in the sentencing cases referred to by both counsel. [28] I first consider the decision of R. v. Lloyd, 2016 SCC 13. That is a recent decision of the Supreme Court of Canada which dealtwith the minimum one-year sentence to be imposed for trafficking in a

Schedule I or II drug where the offender has been convicted ofany drug offence except possession within the previous 10 years. The provisions of the Controlled Drugs and Substances Act weredeclared unconstitutional by the Supreme Court of Canada in the Lloyd case. I accept the submission of counsel for Mr. Vickerson thatit is open to this Court to impose a suspended sentence. I also accept the submissions of the Crown that a period of incarceration is alsoavailable to this Court to impose. [29] In the decision of Lloyd, the sentencing judge imposed a sentence of 12 months' imprisonment.

The Supreme Court of Canadafound that a sentence of 12 months was fit. Upon reviewing the circumstances of the Lloyd case, on the one hand, the quantity of drugswas a smaller amount than that in the possession of Vickerson. However, in Lloyd, the accused had a lengthy criminal record. [30] Crown counsel also referred to the decision of R. v. Pushpanathan, (SCC), [1998] 1 S.C.R. 982. That casesets out the relationship between drugs and crime.

Commencing at paragraph 85, the Court stated: Drug offences such as possession and trafficking are only part of the link between the drug trade and criminality. [31] The Court went on to review the circumstances which a sentencing court should take into consideration when dealing withcrimes such as the offences which bring Mr. Vickerson before the Court. The case of Pushpanathan is some 18 years old and perhapsdoes not accurately reflect the circumstances of drug trafficking today.

Nevertheless, I must take into consideration the principles set outin that case. [32] Crown counsel also referred to the decision of R. v. Kukelka, 2010 BCCA 180, a decision of the British Columbia Court ofAppeal. This case involved a low-level drug trafficker who was also addicted. He had previous convictions for related offences. At

paragraph 32, the Court of Appeal referred to a number of other cases and said, and I quote: ... the range of sentences was 12 to 18 months. Of the cases cited, those cases seem closest to the case at bar. [ 33 ] Crown counsel referred to the case of R. v. Schoenhals , 2008 BCCA 380 , a decision of our Court of Appeal. In that case, the accused was before the court on charges of possession of cocaine for the purpose of trafficking and traffic-in-cocaine, received a sentence of 18 months in jail less credit for time served. The value of the drugs in Schoenhals ' case was between $1,500 to $2,000.

Crown counsel points out that that was substantially less than the value of the drugs in the possession of Mr. Vickerson. [ 34 ] Crown counsel pointed to the decision of R. v. Tran , 2007 BCCA 613 , a decision of the B.C. Court of Appeal. This was a dial- a-dope case which is significantly different than the case of Vickerson. The accused was convicted of possession for the purpose of trafficking and received a nine-month sentence. He had no previous record and he was not an addict. As I pointed out, the Vickerson case does not involve a dial-a-dope operation, but I do note that Mr.

Vickerson has a previous conviction for a similar offence. [ 35 ] The case which is of the most importance in the Vickerson case is R. v. Voong and others , 2015 BCCA 285 . The Court of Appeal reviewed the appropriate sentence to be imposed in dial-a-dope operations. As I previously pointed out, I recognize that Mr. Vickerson was not involved in a dial-a-dope operation. Nevertheless, the principles of sentencing set out in the Voong case are relevant. The decision starts at paragraph 1 with these words: Those who embark in drug trafficking engage in serious criminal conduct.

Absent exceptional circumstances, in British Columbia, they should expect to be sent to prison. At paragraph 44 and 45, the Court stated: [44] What then is the range of sentence for dial-a-dope traffickers? We know the statutory range is from a suspended sentence to life imprisonment. We also know, from an abundance of cases decided by this Court, that the normal range of sentence for a first offence dial-a-dope drug trafficker is between six to nine months incarceration, and upwards to eighteen months in some cases, absent exceptional circumstances.

A brief review of some of the cases will demonstrate this range. [45] The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence. At paragraph 59, the Court stated: In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non- custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 36 ] Further in the Voong case, the Court considered the circumstances of Taylor who was also before the court for a review of his sentence. The Court of Appeal found that Taylor had not shown that there were exceptional circumstances. The issue before me is to determine whether or not exceptional circumstances are present with respect to Mr. Vickerson. As I previously pointed out, I am not bound by the decision of Voong as this is not a dial-a-dope situation.

Nevertheless, I do find that I must follow the guidance of the Court of Appeal. [ 37 ] With respect to the exceptional circumstances, Mr. Vickerson has found gainful employment and he has taken some steps to deal with his drug abuse, although there is no evidence that he was ever an addict. I find there have been some steps taken towards rehabilitation. [ 38 ] The aggravating factors have already been pointed out by the Crown. These are

Schedule I drugs, Mr. Vickerson was selling drugs for profit, and I find most significant he has a previous conviction for possession of drugs for the purpose of trafficking. That conviction occurred eight years ago. There have been positive changes in Mr. Vickerson's life, but I note that in 2011, he was engaged in criminal activity by taking

part in a riot and, in 2013, the charges that bring him before the Court show that he had not abandoned being in possession of drugs for the purpose of trafficking. [ 39 ] I conclude that an appropriate sentence with respect to Counts 1, 2, and 3 would be a sentence of incarceration of 12 months to be followed by a period of probation. I will hear from counsel as to the length of probation. [ 40 ] With respect to Count 4, there will be a sentence of 30 days to be served concurrently.

The sentence imposed on Counts 1 to 3 will also be served concurrently. [ 41 ] There will be the usual victim fine surcharge. [ 42 ] With respect to the provisions of s. 109 of the Criminal Code , I prohibit Mr. Vickerson from owning, possessing, or acquiring firearms, ammunition, or explosives for life. [ 43 ] I have not heard from counsel with respect to the execution of a DNA warrant and I --

[ 44 ] MR. FAI: No submissions with respect to that. [ 45 ] THE COURT: Thank you, Mr. Fai. I order that, while Mr. Vickerson is in custody, a DNA warrant will be executed. [ 46 ] With respect to the issue of forfeiture, I will take a short adjournment so that -- [ 47 ] MR. FAI: Okay, Your Honour, I have reviewed the forfeiture order. It seems appropriate. The return of items that are not involved in the drug trafficking and everything that is being forfeited is appropriate. So I -- we would consent to that. [ 48 ] THE COURT: Thank you, Mr.

Fai; I will sign the forfeiture order in the form presented by Crown counsel. [ 49 ] Ms. Wiancko, first, with respect to probation, is the Crown seeking a term of probation? [ 50 ] MS. WIANCKO: The Crown did not ask for a term of probation, but -- [ 51 ] THE COURT: That is what I was wondering. [ 52 ] MS. WIANCKO: -- in terms of -- yes, that is correct, but in terms of the probation order you have asked for a length.

So the Crown would suggest 12 months would be appropriate and the conditions that were suggested by the probation officer as set out on page 5 of her report appear to be appropriate in the Crown's submission. [ 53 ] THE COURT: Mr. Fai, if Mr. Vickerson does not feel that a period of probation would be of assistance to him, I will not impose it. If he feels that a period of probation is useful, then I would grant the Crown a probation order on the terms as set out. [ 54 ] MR. FAI: Your Honour, we are of the view that Mr.

Vickerson does not require that further assistance. [ 55 ] THE COURT: Very well, then. [ 56 ] Anything else I have overlooked, Ms. Wiancko, first? [ 57 ] MS. WIANCKO: No, Your Honour. [ 58 ] MR. FAI: There is a victim fine -- the victim surcharge is automatic, becomes due two months after the completion of the custodial portion of the sentence. He -- [ 59 ] THE COURT: If you wish, Mr. Fai, I would mark that for default immediately and consider the time served as the appropriate disposition with respect to the victim fine surcharge. [ 60 ] MR.

FAI: Yes, I think that would be appropriate because, obviously, he will not be working because he is going to be incarcerated and who knows what his employment situation will be like after he is released. [ 61 ] THE COURT: Yes, so ordered. [ 62 ] Anything else, Mr. Fai? [ 63 ] MR. FAI: No, thank you. [ 64 ] THE COURT: Thank you, Mr. Fai. Thank you, Ms. Wiancko. [ 65 ] MS. WIANCKO: I apologize, Your Honour. Just in terms of the -- for my paperwork purposes, it was -- it is $100 per charge and then you are finding him in default. [ 66 ] MR.

FAI: It is $200 -- [ 67 ] THE COURT: That is something that the -- [ 68 ] MR. FAI: It is $200 for indictable and all the counts are indictable. [ 69 ] THE COURT: I do not impose -- [ 70 ] THE CLERK: Thank you, Your Honour. [ 71 ] THE COURT: I do not propose to comment on that. [ 72 ] Anything further, Ms. Wiancko? [ 73 ] MS. WIANCKO: No, Your Honour. [ 74 ] THE COURT: Thank you. [REASONS FOR SENTENCE CONCLUDED]