ONTARIO COURT OF JUSTICE DATE: 2024 09 05 COURT FILE No.: Sudbury 4011-998-22- 40101240
B E T W E E N :
HIS MAJESTY THE KING
— AND —
STRAUN FREDERIKSEN
Before: Justice G. Jenner Heard on: July 23, 2024 Reasons for Judgment released on: September 5, 2024
Counsel: David G. Kirk, for the Crown Glenn E.J. Sandberg, for the defendant Straun Frederiksen
JENNER J.:
REASONS FOR SENTENCE
I. Introduction
1The offender, Straun Frederiksen, pleaded guilty on July 23, 2024, to one count of breaching the public trust, contrary to s. 122 of the Criminal Code. Between 2019 and 2021, while employed as a Staff Sergeant of the Ontario Provincial Police (OPP), and while responsible for the property vault, he took two items that had been seized by the OPP during an investigation. He removed a beaded firearm strap and a firearm scope without legal authority and brought those items to his own residence.
2The items belonged to M, an Indigenous man. The beaded strap was a gift from M’s late wife and was of sentimental and spiritual value. When the OPP sought to return the items to M, they could not be located. For 11 months, Mr. Frederiksen misled his colleagues, as well as the Crown Attorney’s Office, before ultimately confessing that he had taken the items home and subsequently thrown them out.
3Mr. Frederiksen asks this court to conditionally discharge him and place him on a period of probation. He emphasizes his long record of public service and extensive community support, his mental health struggles in a high-stress work environment, and rehabilitative steps taken since his arrest. The Crown argues that a conditional discharge would be contrary to the public interest and asks this court to suspend the passing of sentence and place Mr. Frederiksen on probation. The Crown acknowledges the various mitigating features of the case but submits they only justify reducing what would otherwise be a custodial sentence.
II. Circumstances of the Offence
4The facts were presented in an Agreed Statement of Facts (ASF). On September 28, 2019, OPP officers at the Nipissing West (Sudbury) Detachment received a call concerning illegal moose hunting. M was charged and, following the execution of a search warrant, several firearms, scopes, straps, and accessories were seized. The seized property was taken to the OPP detachment to be stored in the property vault. Mr. Frederiksen was the officer responsible for vault security and evidence management.
5In November 2020, plea discussions between the Crown and M contemplated the return to M of one firearm of his choice, to allow him to carry out his cultural traditions and hunt for sustenance purposes. M requested a 303 rifle and its scopes and straps. He said the 303 would be easy to recognize as the strap attached to it had cultural beadwork on it and a scope. M wanted the strap returned as it was a gift to him from his late wife and had sentimental and spiritual value to him.
6In February 2021, S/Sgt. Webb of the OPP was following up on this request and learned that several items of the property were being stored in Mr. Frederiksen’s office rather than the property vault. S/Sgt. Webb verbally reprimanded him.
7Meanwhile, Sgt. Parsley of the OPP received information that in August 2020, the firearms seized in M’s case had been sent to OPP headquarters and were awaiting destruction. There had been no judicial order to that effect. On February 25, 2021, S/Sgt. Webb attended OPP headquarters to retrieve the firearms, but the beaded strap and scope were not located.
8On March 9, 2021, Mr. Frederiksen sent an email to the Sudbury Crown Attorney wherein he described the OPP having a leather firearm sling, and a “4 by 12” scope, but no beaded strap and no other scopes. Mr. Frederiksen confirmed they did have all the seized firearms.
9On April 15, 2021, Justice Keast ordered several items to be forfeit for destruction but ordered the return of the “303 Remington Model: 740 with scope attached” and the “leather gun strap” to M. On April 30, 2021, a “303 Lee Enfield Sporter” was returned to him. M was upset that the additional items were not returned and requested that the OPP do so. On May 12, 2021, D/C Lacelle and Sgt. Parsley of the OPP obtained the leather gun strap and scope that were referenced in Mr. Frederiksen’s email to the Crown, and sent them to M, via the Wikwemikong Tribal Police.
10When M received those items on July 28, 2021, he was again upset, as they were not the items he had requested or expected. On August 30, 2021, M’s counsel emailed D/C Lacelle to advise that there were other straps, bags and scopes that had been seized, and which should be returned. This email was forwarded, via Sgt. Wall, to Mr. Frederiksen.
11On September 10, 2021, Mr. Frederiksen replied to Sgt. Wall conveying:
- He was in charge of the vault prior to Sgt. Parsley taking over.
- In August 2020 many firearms, including those from M’s case, were taken from the vault to be verified they were authorized for destruction.
- He believed there was a valid destruction order for those firearms.
- It was Sgt. Webb’s policy not to seize scopes, slings or straps, or bags for firearms. Mr. Frederiksen removed one tan-coloured leather strap and one variable scope from the firearms and does not recall any others. He put them in a box in an office and asked someone to return them.
- When Mr. Frederiksen returned from vacation in late September 2020, he noticed the box with the items was still there, so he moved it to one of the cabinets in his sergeant’s office with the intent to return them to the vault.
- In February 2021 he told S/Sgt. Webb that he only had the two items and could not recall any others. This precipitated the verbal warning and Mr. Frederiksen put the items in the vault as instructed.
- S/Sgt. Webb attended OPP headquarters to retrieve the firearms and Mr. Frederiksen understood the leather strap and the scope to have been returned to M.
12As a result, S/Sgt. Wall contacted OPP Risk Management. Following investigation, it was believed that based on the wording of Justice Keast’s forfeiture order, it was possible the missing items had been destroyed. The Risk Management department deemed the OPP not culpable for the missing items. In December 2021, S/Sgt. Wall conveyed this outcome to M’s counsel, and advised that the police could purchase a new beaded strap should M wish.
13Several months later, on February 23, 2022, Mr. Frederiksen called OPP Insp. Maville and confessed he had taken the beaded strap and scope to his home and subsequently threw them in the garbage.
14On March 11, 2022, the OPP Professional Standards Unit obtained an audio statement from Insp. Maville who confirmed the call and expressed concern that Mr. Frederiksen had been involved in the ordeal to attempt to locate the item, had knowledge of his colleagues’ extensive efforts, and had not said anything earlier. Insp. Maville advised that Mr. Frederiksen was extremely apologetic and remorseful when he made the disclosure.
III. Circumstances of the Offender
15The court has received extensive information concerning Mr. Frederiksen, via a pre-sentence report, medical reports and character reference letters, the representations of counsel, and Mr. Frederiksen directly.
16The offender is a 53-year-old police officer with the OPP. Hailing from a family of law enforcement professionals, he began his policing career in 1995. He has been a sergeant for over 14 years. He is currently on a paid suspension. Prior to this incident, he could not recall any previous disciplinary action, and none is alleged. Unsurprisingly, he has no criminal record.
17He has been happily married to his wife for 26 years. They have two adult daughters, one of whom lives in the family home with her fiancé. The offender and his spouse own their home together, though they worry they may need to consider moving if the offender loses income for an extended period.
18During his current paid leave, he has spent time volunteering. On average he volunteers approximately 10 hours per week. He volunteers with the Good Neighbour Project, the Elgin Street Mission, and Kivi Park. He has also been active in his church, where he helps to clean, assists with the offerings, and participates in the choir. He helped to renovate the church kitchen.
19The offender has completed an online Aboriginal Worldviews and Education Course and is continuing with follow-up courses. In addressing the court, he referenced the Seven Grandfather Teachings, and how Respect in particular reinforces the imperative to do what is right even if the consequences are unpleasant.
20The offender does not suffer any substance use or addiction issues.
21The court received information concerning the offender’s mental health. Since his arrest he has been diagnosed with depression and severe post-traumatic stress disorder (PTSD). He is under the care of a family physician and is taking prescribed medication. He has additionally been seeing a psychologist and has attended 44 sessions thus far (approximately once monthly). He discloses suicidal thoughts since being charged. He has described being overwhelmed with symptoms of work-related PTSD, including morbid visions from fatal motor vehicle collisions. He also struggled in the wake of a colleague being killed in the line of duty.
22Mr. Frederiksen’s spouse is also benefiting from counseling. Both are supported through his employment benefits and are concerned they would struggle to afford these services without this coverage. While the offender was at “rock bottom” immediately after being charged, he has shown an overall improvement in his mental health. He is more involved now in his community and communicates in a healthier way at home. In terms of future goals, the offender wishes to take accountability for his actions, to continue with counseling, and to secure new employment.
23With respect to the offence itself, the offender reports feeling very overwhelmed at work during the COVID-19 pandemic. He felt isolated from his family, his colleagues, and his faith. He did not communicate his feelings of stress and realizes now that he was stretched beyond his limits in terms of his duties.
24In addressing the court, he offered his apology to his colleagues, the Crown Attorney, and to M. He reports losing the friendship of many of his colleagues because of his actions. He feels shame and embarrassment. Despite this professional falling out, the offender has an enormous amount of community support. This is evident from the full courtroom at his sentencing hearing, and from the 66 letters of support that were filed on his behalf, including from current and past colleagues, friends, family members, church members, and neighbours. Those who know the offender well view his conduct in this matter to be completely out of character.
IV. Applicable Law
25From broadest in scope to narrowest in focus the court must consider the following: (i) the general purpose and principles of sentencing, (ii) the sentencing of breach of trust offences, (iii) the law of conditional discharges generally, and (iv) the availability of discharges to police officers in in similar circumstances.
4.1 The purpose and principles of sentencing
26Pursuant to s. 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society and contribute to the respect for the law and the maintenance of a just, peaceful, and safe community by imposing just sanctions that have one or more of the following objectives:
(a) To denounce lawful conduct and the harm done to victims or the community; (b) To deter the offender and others from committing offences; (c) To separate offenders from society where necessary; (d) To assist in rehabilitating offenders; (e) To provide reparation for harm done to victims or to the community; and (f) To promote a sense of responsibility in offenders, and acknowledge the harm done to victims or the community.
27Several other statutory principles apply to this case.
- Proportionality: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1.
- Aggravating and Mitigating Factors: A sentence should be increased or decreased to account for relevant aggravating or mitigating circumstances, including but not limited to those statutory factors set out in s. 718.2(a).
- Parity: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2(b).
- Restraint: An offender should not be deprived of liberty if less restrictive sanctions may be appropriate: s. 718.2(d). All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders: s. 718.2(e).
28These principles and purposes do not operate in silos. Their interconnected roles, and the context-driven individualized approach to sentencing were described by the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13, at paras. 37-38.
The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:
It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
Despite the constraints imposed by the principle of proportionality, trial judges enjoy a broad discretion in the sentencing process. The determination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, a highly individualized process. Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender…
4.2 Sentencing police officers for breach of trust
29Section 122 of the Code creates a hybrid offence. When the Crown proceeds summarily, as here, the provision stipulates no minimum or maximum penalty. The upper limit is therefore that generally applicable to summary conviction offences: a fine not exceeding $5,000, a term of imprisonment of not more than two years less a day, or both: s. 787(1).
30Both parties presented the court with caselaw specifically concerning the sentencing of police officers guilty of breaching the public trust.
31From my review of the jurisprudence, the following principles emerge:
- Police officers occupy a special position of trust in the community, gain access to places and situations which the ordinary person does not, and are counted on to uphold the law and constitution: R. v. Cook, 2010 ONSC 5016, at paras. 29, 32, and 34.
- A significant feature of the rule of law is that police officers are themselves subject to it: Cook, at para. 33.
- The administration of justice depends on the fidelity and honesty of police, and society demands the enforcement of high standards on police conduct. Abuse of the public trust stains not only the reputation of the justice system, but also the reputation of the offender’s fellow police officers: Cook, at paras. 29, 34, and 40.
- While an essential element of the offence in s. 122, breach of public trust is also a deemed aggravating factor in sentencing: Criminal Code, s. 718.2(a)(iii); Cook, at para. 38.
- In such cases, a higher emphasis is placed on the principles of general denunciation and deterrence: R. v. Rudge, 2014 ONSC 241, at para. 17.
- The commission of a breach of trust will normally call for a custodial term unless there are exceptional circumstances to justify lesser punishment: R. v. Mann, [1978] O.J. No. 1398 (C.A), at para. 3; R. v. Sammy, 2004 ONCJ 32, at para. 5.
- Courts may consider that a police officer offender would necessarily be aware of the consequences of their actions: Cook, at para. 35.
- Offenders in such cases will unsurprisingly be able to adduce abundant good character evidence; it is their good character profile which has allowed them to attain the position of trust they have abused: Cook, at para. 36.
- General deterrence can be more effective in respect of offences typically committed by law-abiding persons with good employment records and strong community reputations: Cook, at para. 36; R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at p. 503.
- While the stigmatization of an accused may be amplified in the case of a public official, these consequences, including feelings of shame and disgrace, should not be over-emphasized in determining a fit punishment: Cook, at para. 37.
- The consequential impact of loss of employment is a factor to be considered, but the jeopardy of loss of employment cannot override the need for denunciation and deterrence: R. v. Preston, 2008 ONCA 530, at para. 3; Cook, at para. 42.
- The offender’s mental health and personal circumstances are important and relevant considerations, but medical conditions cannot generally be used to avoid what is otherwise a fit and proper sentence: R. v. Heron, 2017 ONCA 441.
- Sentences imposed on police officers breaching the public trust range from significant jail terms at the high end, to discharges at the low end.
4.3 The availability of a conditional discharge
32Section 730 of the Criminal Code speaks to absolute and conditional discharges:
730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).
33There is no question that the offence here is technically eligible for a discharge, in that the accused is not an organization, there is no applicable minimum sentence, and the offence is not punishable by up to 14 years or life imprisonment. The issue turns on whether a discharge is “in the best interests of the accused” and “not contrary to the public interest.” The Court of Appeal for Ontario’s early guidance in R. v. Sanchez-Pino, [1973] O.J. No. 1903, at para. 17-19, still applies:
…The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence—a standard part of the criteria for sentencing.
… [The section] is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.
To attempt more specific delineation would be unwise, and might serve to fetter what I conceive to be a wide, albeit judicial, discretion vested in the trial Court. That Court must consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria that I have mentioned.
34Other courts have commented that the discharge provision is not limited in application to technical or trivial violations, nor should it be applied to any particular offence as a matter of routine: see, for example, R. v. Fallofield, [1973] B.C.J. No. 559 (C.A.), at para. 21; R. v. Hayes, [1999] O.J. No. 938 (S.C.), at para. 32.
35More recently, the Alberta Court of Appeal emphasized the relationship between the registering of a conviction and the sentencing objective of denunciation in R. v. Turner, 2022 ABCA 11, at para. 34:
Promotion of the community’s interests requires that there be a public record of those who commit crimes and a formal state denunciation of criminal conduct. The latter achieves the primary statutory objective of sentencing—“to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct.”
4.4 Conditional discharges and police officers who have breached the public’s trust
36Against this general backdrop, the defence points out that discharges have been imposed on several police officer offenders in past.
37In R. v. Gray, an officer pleaded guilty to one count of breach of trust after he used his position to obtain information destined for his employer to further his own personal consulting business. The officer was 57 years of age, had an outstanding and lengthy record of policing, and was community- and volunteer-oriented. He suffered from anxiety and depression. As part of his agreement to plead guilty, he resigned from the police the week of his sentencing. The court emphasized the stigma of the finding of guilt, the blemish on an otherwise outstanding police career, the legal fees the officer would have privately incurred, and the adverse effect of the proceedings on the officer’s health. The officer was granted an absolute discharge.
38In R. v. Edmunds, 2012 NLCA 26, the Newfoundland and Labrador Court of Appeal dismissed the Crown’s appeal from a conditional discharge imposed on a correctional officer who had stolen approximately $400 from two inmates. The offender had been seeing a psychiatrist for depression and stress, had voluntarily entered a treatment program, had lost three months’ wages, and had made full restitution. The sentencing judge emphasized that the psychiatric evidence before the court demonstrated a strong link between the officer’s psychiatric illness and the offence. The Court of Appeal held that the public’s confidence in the enforcement of criminal law will not be undermined where the court of first instance emphasizes rehabilitation over deterrence in such circumstances.
39In R. v. Spindor, 2016 BCPC 396, a 29-year-old eight-year veteran police officer pleaded guilty to breaching the public trust by stealing cash from a petty cash jar and stealing and inappropriately discarding other items seized in the course of professional duties. The officer also falsified a related property report. Evidence demonstrated Mr. Spindor to have been an excellent police officer, who was suffering symptoms of PTSD and depression and who was addicted to gambling. Despite the aggravating attempt to conceal his behaviour, the court granted a conditional discharge.
40In R. v. Murray, 2018 ONCJ 393, a highly respected senior police officer pleaded guilty to breach of trust by stealing or tampering with evidence, specifically controlled substances. He was suffering PTSD arising from his work and took the substances for personal use. He received a conditional discharge and three years’ probation.
41In R. v. Smith, 2021 ONCJ 234, a police officer was found guilty after trial in relation to forging the signature on a destruction waiver for the surrender of a firearm. The officer suffered PTSD and completed a residential treatment programme for alcohol addiction. His actions occurred during a period of personal and professional upheaval, and due to an inability to deal with the pressures of police work. The delicts were seen to be at the lower end of the spectrum, as on both occasions the offences had been committed seemingly to avoid the inconvenience re-attending certain locations to obtain the proper signatures. The officer did not otherwise gain personally or financially. The officer was discharged conditionally.
42In other cases, courts faced with a request to impose a discharge have declined to do so.
43In R. v. Kelly, 2004 ABPC 110, [2004] O.J. No. 811, the officer had given three grams of cocaine to a police agent to remain friends with the agent, to obtain repayment of a gambling debt from him, and to continue to receive information on fixed horse races. The officer presented with an impeccable service record, and a high level of stress because of his dangerous job and difficult personal circumstances. He had undertaken considerable rehabilitative efforts since his arrest. In rejecting the appropriateness of a discharge, the court concluded as follows, at para. 66:
I find it would be contrary to the public interest to grant one. The public has an interest in having police officers maintain the highest standard of integrity and character. Robert Kelly maintained that standard for most of his working life but fell into the dark side of life of drugs and alleged fixed horse races. If I granted a discharge in this case, I would be disregarding the public interest and the disrepute Mr. Kelly has brought to himself and the police service. Were it not for his prior good record, guilty plea and efforts at rehabilitation, Mr. Kelly would be looking at a jail term.
44In R. v. Whitney, 2015 BCPC 27, [2015] B.C.J. No. 327, a 16-year veteran RCMP officer pleaded guilty to breach of trust by stealing $650 that he had seized in the course of his duties. Prior to sentencing, the officer had resigned from his position and had sought medical assistance for depression. The officer did not have a criminal record but had been granted a conditional discharge in the past. In determining that a discharge would be contrary to the public interest, the court observed, at para. 97, that “[t]he message must be clearly sent to police officers that when they commit a breach of trust while on duty, that any sentence that is imposed requires that deterrence be paramount to preserve the public faith in the integrity of the justice system.”
45Of course, in many further cases of police breach of trust the conduct has been sufficiently serious that a discharge has neither been requested nor contemplated.
V. Analysis
46In considering a fit sentence, and whether a discharge is appropriate, the court must canvass the various mitigating and aggravating factors.
47An important mitigating factor in this case is the offender’s acceptance of responsibility and demonstrated remorse. As harmful as it was that he stretched his deception over a period of many months, he ultimately brought the charade to an end voluntarily when he confessed his actions to his superior. I cannot say whether the offender would have been found out but for his confession, but on the facts before me I am satisfied it was the offender’s conscience, rather than cold calculation, that precipitated his admission.
48He also pleaded guilty; perhaps not early in the legal process, but I accept his counsel’s representation that it was the offender’s steadfast intention to resolve the charges from their first stages. I also accept the offender’s apologies as earnest and heartfelt.
49Mr. Frederiksen’s mental health struggles are another important mitigating factor. I accept that the period during which this offence occurred was particular stressful for first responders, including police officers. I accept that the offender’s workload during the COVID-19 pandemic was extremely taxing. I also accept that the fall of 2020, the loss of an OPP colleague in the line of duty seriously impacted the offender and his mental health.
50While an important factor, this case is distinguishable from those, such as Edmunds or Murray, where an offender’s mental illness or addiction were more proximate contributors to the offending behaviour. Here, Mr. Frederiksen did not simply neglect his duties and lose track of certain items, as might be more easily understood in the face of overwhelming professional demands—he removed them to his own residence, then lied to colleagues and the Crown Attorney about it for months. That nuance must be weighed as well.
51I also consider as mitigating that Mr. Frederiksen’s mental health struggles have been exacerbated by his arrest and the feelings of shame and embarrassment that flowed from it. The court is alive to the enhanced stigma that has attached to Mr. Frederiksen as a public official, though I agree with Justice Hill’s comments in Cook that I must be careful not to overemphasize this factor (para. 37).
52A subtext to this sentencing hearing was the looming professional discipline process that awaits the offender. The defence has highlighted as mitigating the vulnerability of the offender and his family to his potential loss of income, as well as the additional level of shame and embarrassment that such a process will bring. The Crown, acknowledging the court’s ability to take these collateral consequences into account, emphasized that the sentence imposed must nonetheless be proportionate—the analysis cannot be warped to produce an artificial sentence to avoid collateral consequences: R. v. Pham, 2013 SCC 15, at paras. 14-15.
53Ultimately, the sentence I impose does not alter the facts the offender has acknowledged, and I have no evidence before me to assist in determining how and to what extent the sentence I impose would impact professional discipline proceedings. It bears emphasizing that it is not this court’s function to make those determinations. I do, however, acknowledge that this court will not be the exclusive tribunal responding to Mr. Frederiksen’s conduct, and that the subsequent legal process may result in further denunciation and deterrence.
54Aggravating of course, is the breach of public trust. Though the central element of the offence itself, it is a deemed aggravating factor in s. 718.2 (a)(iii) of the Code. I echo the comments of previous courts that the public has an interest in having police officers maintain the highest standard of integrity and character. The offender’s actions undermined faith in policing and the justice system.
55I must also consider as aggravating the extended duration of the deception. Mr. Frederiksen had earlier opportunities to reflect on the matter and end it, but instead took active steps to deflect the attention of his colleagues. This also constituted a secondary trust that Mr. Frederiksen breached; that of his police colleagues while they expended time and energy to try to locate the missing items. These were resources diverted from the OPP’s service to the community.
56The Crown properly emphasized the exceptional scrutiny that the law places on police when they seize an individual’s property. Such seizures have clear constitutional dimensions, and the Criminal Code contains a comprehensive regime to govern seized property. In addition to these requirements, police officers such as the offender are aware of the importance of maintaining the continuity of exhibits for criminal prosecutions. The offender’s conduct not only infringed on M’s property and privacy interests but undermined the integrity of the investigation and legal process.
57It is also aggravating that a direct victim of the offence, M, was a vulnerable individual from a vulnerable community. Section 718.04 of the Criminal Code, enacted in 2019, stipulates that when a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances the court shall give primary consideration to the objectives of denunciation and deterrence. Whether or not s. 718.04 directly applies to this case—which question turns on the interpretation of “abuse”—the vulnerability of a victim has always been an aggravating factor in sentencing. The vulnerability of an Indigenous victim is an appropriate consideration. So too is the particular impact in depriving M of an item of cultural, spiritual and personal significance.
58Both parties conceded that the court may take judicial notice that Indigenous persons and communities have a unique relationship with the criminal justice system and policing. That relationship is defined by a distinct distrust grounded in a history and collective experience of systemic discrimination on a massive scale: see R. v. Gladue, [1999] 1 S.C.R. 688, at paras. 58-63. Though there is no evidence that the offender was motivated by any personal malice, or that he targeted M as an Indigenous man, it is aggravating that the offence reinforces the bases for that distrust and has the potential to exacerbate what the Supreme Court of Canada has termed the “estrangement of [Indigenous] peoples from the Canadian criminal justice system”: Gladue, at para. 61.
59The court does recognize that the offender has some insight into the particular harm he occasioned to M and the Indigenous community. I take it, from some of the learning the offender has since pursued, that he recognizes the trust he betrayed and the need to do better. I also consider that in the letters of support filed with the court, there is indication the offender has worked extensively in Indigenous communities, and he is reported to have approached his responsibilities with respect and professionalism.
60What is the court to make of the offender’s long career of public service and unblemished reputation? It has both mitigating and aggravating features. On the one hand, it matters that the offender comes before this court with no criminal record and an unblemished record of public service. That Mr. Frederiksen has been an excellent husband, friend, neighbour, and colleague to many is clear and compelling. That his offending conduct was completely out of character—which I accept—is of course mitigating.
61But there are aggravating features to the offender’s long public service as well. It was his status as a police officer, and his additional supervisory duties, that he traded on to commit the offence. And, as a veteran officer, he not only knew the potential consequences of his actions but knew that younger and less experienced officers would look to him as a role model.
62Bearing these various features in mind, in conjunction with the fundamental purpose and principles of sentencing, what is a fit and just sentence for Mr. Frederiksen?
63The Crown conceded, and I agree, that a conditional discharge would be in Mr. Frederiksen’s own best interests. I also conclude that Mr. Frederiksen himself needs no specific deterrence to prevent him from offending in the future. I accept the offender’s statement that standing before the court to face sentence was a “personal nightmare.” Nor is any sanction, additional to the terms of a probation order, necessary for his rehabilitation.
64The more difficult question is whether a conditional discharge would not be contrary to the public interest. Having mind to the principles of sentencing discussed above, and the unique array of mitigating and aggravating factors in this case, I conclude that granting Mr. Frederiksen a conditional discharge for this offence would be contrary to the public interest.
65The circumstances of the offence call for a level of denunciation that cannot be sufficiently addressed by a discharge. A discharge would risk signaling to the public that this conduct is excused by the previous good character and professional service of the offender. It would risk contributing to the fraught relationship between Indigenous persons and the criminal justice system, rather than promote reconciliation.
66It would also be insufficient having mind to the need for general deterrence. I am particularly concerned about the signal sent to less experienced officers. Public officials such as police officers are among the groups most likely to be effectively deterred by appropriate sanctions. Given the trust placed in the offender as a supervisor responsible for the lodging of evidence, the breach of that duty, and the subsequent sustained deception, a conviction is required to serve that general deterrent function.
67This is not to say that the mitigating considerations discussed above are unimportant. On the contrary, they operate to render a custodial sentence excessive, having mind to Mr. Frederiksen’s personal struggles, the principle of restraint, and the offender’s self-initiated path of rehabilitation. In my view, registering a conviction, and imposing a suspended sentence and period of probation are sufficient to denounce the conduct in clear terms, to promote a sense of responsibility in Mr. Frederiksen, and to acknowledge the harm done to M, the OPP, and the public generally.
VI. Conclusion
68A conviction will be entered. The court will suspend the passing of sentence and place Mr. Frederiksen on probation for a period of 12 months. In addition to the statutory terms, the following conditions will apply:
- The offender is to report to his probation officer within 48 hours and thereafter as directed.
- At the direction of his probation officer, the offender is to attend, participate and complete any counseling that is directed.
- The offender is to sign any consents or releases to allow his probation officer to monitor any such counseling.
- The offender is to complete 75 hours of community service and provide proof of completion to his probation officer.
- Once the 75 hours of community service have been completed to the supervisor’s satisfaction, the reporting and counseling requirements shall terminate, unless the offender wishes to continue to avail himself of counseling available to him through probation services.
- The offender is not to communicate, directly or indirectly, with the victim M, except with M’s written revocable permission provided in advance to the probation officer.
69The Crown has not sought a DNA order, which is discretionary in this case, and no such order will be made.
70Pursuant to s. 737, there shall be a victim fine surcharge in the amount of $100.00, payable within 30 days.
71I thank counsel for their preparedness and organization in this matter.
Signed: Justice G. Jenner