citation: "R. v. Borissov, 2024 ONCJ 534" parties: "His Majesty The King v. Boris Borissov" party_moving: "His Majesty The King" party_responding: "Boris Borissov" court: "Ontario Court of Justice" court_abbreviation: "ONCJ" jurisdiction: "Ontario" case_type: "sentencing" date_judgement: "2024-10-02" date_heard: ["2024-09-10""2024-10-01"] applicant:

• "His Majesty The King" applicant_counsel:
• "S. Walker" respondent:
• "Boris Borissov" respondent_counsel:
• "J. Mulcahy" judge:
• "M.E. Misener" summary: > Boris Borissov, a Toronto Police Service officer, was sentenced for multiple offences including theft, fraudulent use of bank cards, trafficking stolen property, attempt to obstruct justice, unauthorized use of police computer systems, and possession of a motor vehicle obtained by crime. The offences involved abusing his position to steal from vulnerable victims (a missing person and a deceased woman) and to assist criminal associates by providing internal police information and obstructing investigations. The court emphasized denunciation and deterrence as primary sentencing objectives for police officers who breach public trust. Despite mitigating factors such as good character, PTSD, and rehabilitation efforts, the court imposed a global sentence of 7 years' incarceration, finding the offences to be profound and repeated abuses of police power. interesting_citations_summary: > This sentencing decision extensively applies and distinguishes precedents regarding police officers' breach of trust, obstruction of justice, and misuse of police databases. It reinforces the principles of denunciation and deterrence for such offences, citing R. v. Schertzer, R. v. Hansen, and R. v. Ruthowsky for obstruction of justice, and R. v. LeBlanc, R. v. Duke, and R. v. Cook for theft by officers. The court also discusses the limited weight given to collateral consequences (loss of employment, public humiliation) when offences are calculated and foreseeable, referencing R. v. Suter and Marchessault v. The Queen. It clarifies that PTSD and addiction are mitigating only if a nexus to the offences is established, and that lack of remorse is not an aggravating factor if the accused maintains innocence, per R. v. Valentini. The decision also addresses the Kienapple principle regarding multiple convictions arising from the same delict, distinguishing property offences from breach of trust. final_judgement: > Boris Borissov was sentenced to a global term of 7 years' incarceration for multiple offences including theft, fraudulent use of bank cards, trafficking stolen property, attempt to obstruct justice, unauthorized use of police computer systems, and possession of a motor vehicle obtained by crime. Specific sentences were: 3 years for thefts and frauds (concurrent sentences of 18 months for AK's debit card, 18 months for AK's watch, and 18 months consecutive for LL's credit card), 2 years consecutive for attempt to obstruct justice, and 2 years consecutive for unauthorized computer checks. A 4-month concurrent sentence was imposed for possession of stolen property. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2024 decision_number: 534 file_number: "4911-998-22-50005213-01" source: "https://www.canlii.org/en/on/oncj/doc/2024/2024oncj534/2024oncj534.html" cited_cases: legislation:
  • title: "Criminal Code, RSC 1985, c C-46" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/" case_law:
  • title: "R. v. Lacasse, 2015 SCC 64" url: "https://www.minicounsel.ca/scc/2015/64"
  • title: "R. v. Schertzer, 2015 ONCA 259" url: "https://www.minicounsel.ca/oca/2015/259"
  • title: "R. v. Bissonnette, 2022 SCC 23" url: "https://www.minicounsel.ca/scc/2022/23"
  • title: "R. v. Cook, 2010 ONSC 5016" url: "https://www.canlii.org/en/on/onsc/doc/2010/2010onsc5016/2010onsc5016.html"
  • title: "R. v. Ruthowsky, 2024 ONCA 432" url: "https://www.minicounsel.ca/oca/2024/432"
  • title: "R. v. Burke, 2019 ONCJ 700" url: "https://www.minicounsel.ca/ocj/2019/700"
  • title: "R. v. Valentini, 1999) has made it difficult for the patient to function at times. Nonetheless the patient has a strong desire to make a better life for himself and I believe his determination to restore his health will prevail.

16The defence filed letters of support from Mr. Borissov’s wife and three friends which speak to Mr. Borissov’s commitment to his family and his kindness to his friends. The letters in various ways describe Mr. Borissov becoming more withdrawn during his police career and being particularly affected by the death of his father in 2019. Mr. Borissov’s wife also outlined the impact the charges have had on her and on their children.

Personal Statement

17Mr. Borissov wrote a personal statement “to share how the charges and proceedings against me have affected myself and my family”. As is his right, he does not take responsibility for any of the offences. The statement hints at one explanation for the offences: he describes becoming numb from the stress of his job, the long hours and the traumatic events he witnessed as a police officer which he reports made him create situations to get a dose of high adrenaline.

18He states that he has struggled with alcohol addiction for many years and that he was afraid to acknowledge that he has PTSD and to seek help until 2022. He sets out how he and his family have suffered as a result of the charges and the trial including loss of status in his community, loss of friends, notoriety, loss of income from paid duty work and loss of future pension income.

The Position of the Parties

19The Crown seeks a global sentence of 7 years. The defence submits that the appropriate global sentence is an 18-month conditional sentence. Both parties provided extensive caselaw in support of their respective positions. I have read all of the materials provided by both counsel.

Sentencing Principles

20The principles of sentencing are set out in Section 718 of the Criminal Code and include denunciation, deterrence, reparations, rehabilitation and the promotion of a sense of responsibility in offenders for the harm they have caused.

21The overarching principle is proportionality: the sentence must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The parity principle requires me to apply proportionality, not just in relation to the accused and the offences he committed but also in relation to similar offences committed in similar circumstances: See R. v. Lacasse, 2015 SCC 64, at para. 53.

22Denunciation and deterrence are the primary sentencing objectives where police officers commit criminal offences in the course of their duties. Police officers are entrusted with extraordinary powers to enable them to serve and protect the community. They must be held to the highest standards of integrity to protect against abuse of those powers. Police officers who abuse their positions must be dealt with firmly by the courts: R. v. Schertzer, 2015 ONCA 259.

23The sentence must also be governed by the principle of restraint. In R. v. Bissonnette, 2022 SCC 23 at para. 50, the SCC held that to achieve the overarching goal of proportionality in sentencing:

The sentence must be severe enough to denounce the offence but must not exceed “what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence”.

The Mitigating Factors

I. Good Character

24Until he was charged Mr. Borissov had a successful police career. The commendations, awards, and the recognition he received from the community are factors which weigh to his credit. In breach of trust cases, sentencing judges often observe that it is not surprising that persons charged with breaches of trust are able to marshal abundant good character evidence, given that their achievements are what got them into the position of trust in the first place. See for example R. v. Cook, 2010 ONSC 5016 and R. v. Ruthowsky, 2024 ONCA 432, where this approach was approved by the Court of Appeal. While their weight would be greater in other circumstances, Mr. Borissov’s many years of good police service are a factor in crafting a proportionate individualized sentence.

25Mr. Borissov’s devotion to his family, his contributions to the community through his church and the volunteering he has done since he was arrested are also mitigating factors.

II. PTSD and Addiction

26In some cases, PTSD and addictions are taken into account as mitigating factors.

27For example, in R. v. Burke, 2019 ONCJ 700, the officer developed PTSD after being struck in the head by a machete during the execution of a search warrant and later witnessing his partner being shot. The officer pleaded guilty. The Court held that “but for the exceptional mitigating circumstances of Officer Burke’s addiction and PTSD diagnosis I would have imposed a jail sentence behind bars”.

28While the letters and reports filed by the defence include materials addressing PTSD and alcohol use disorder, I did not understand counsel to be asserting any nexus to these offences.

29In any event, if Mr. Borissov was suffering from PTSD and substance use disorder at the time of these offences, there is no evidence that those conditions contributed to these offences or indeed had any effect on Mr. Borissov’s ability to carry out his duties as a police officer. His friends, looking back, have written that Mr. Borissov was withdrawn, subject to angry outbursts and abused alcohol after the death of his father in March 2019 and Mr. Borissov self-reported to Homewood that he had been failing to meet work obligations. However, it is clear from the annual TPS performance appraisals that PTSD and alcohol use were not affecting Mr. Borissov’s ability to perform his duties, at least to a degree that was apparent to external observers. Mr. Borissov was consistently praised as a team player and a mentor who was well-liked by his fellow officers. In December 2020 one of his supervisors described him as follows: “PC Borissov is a character person. He is well-liked by his colleagues and he has made numerous contacts within the communities that he serves.” In December 2019 he was described as “a natural leader who has an innate ability to blend with a team creating a positive work environment that uplifts the overall morale of the Platoon”, and “He is always willing to help when the need arises and takes on any assigned task without hesitation.” The only criticism was his failure to seek the promotions his supervisors believed he ought to have pursued. In addition, the Court had an opportunity to assess Mr. Borissov’s condition at the very time he was committing offences in February 2022. CCTV video capturing Mr. Borissov downloading security video at the Mississauga shop where AK’s card had been used, including interacting with a fellow officer, was played during the trial. Mr. Borissov appears to be confident, outgoing, and personable, just as he was described in the performance evaluations.

III. Rehabilitation

30It is my understanding that the materials relating to Mr. Borissov’s counselling for PTSD and alcohol use disorder were filed to demonstrate his rehabilitative efforts. Particularly when sentencing a first offender, the Court must consider steps taken towards rehabilitation and the likelihood of rehabilitation. Mr. Borissov is entitled to credit for the steps he has taken to address his mental health. In assessing his rehabilitative prospects, the opinion of Dr. Klarreich that Mr. Borissov approached his counselling with great determination suggests that, in the event Mr. Borissov gains any insight into his offending behaviour beyond the impact these charges have had on himself and his family, he will be a good candidate for rehabilitation.

IV. Remorse

31While Mr. Borissov’s lack of insight deprives him of the mitigation afforded to those who express sincere remorse, it is important not to treat his lack of remorse as an aggravating factor. Mr. Borissov went to trial and continues to maintain his innocence. He is entitled to take that position. In [R. v. Valentini, 1999), the Ontario Court of Appeal cautions sentencing judges to be careful not to increase the sentence beyond what is proportionate having regard to the circumstances of the particular offence on the basis that the offender shows no insight or remorse:

The problem with treating lack of remorse as an aggravating factor is similar to treating the conduct of the defence as an aggravating circumstance. In this case, the lack of remorse appeared to rest on nothing more than the continued assertion of innocence in the face of a guilty verdict following a trial. To treat lack of remorse as an aggravating factor in those circumstances comes perilously close to increasing the sentence because the accused exercised his right to make full answer and defence.

V. Collateral Consequences

32Collateral consequences include any consequence arising from the commission of an offence, the conviction for an offence or the sentence imposed for an offence. These consequences form part of the circumstances of the offender: R. v. Suter, 2018 SCC 34.

33The fact that Mr. Borissov will spend his sentence in protective custody with diminished social contact, fewer amenities and higher risks, is a collateral consequence which I must consider.

34Loss of employment and public humiliation are also collateral consequences to be considered in sentencing: See for example R. v. Bunn, 2000 SCC 9. Since sentencing is an individualized process, the weight accorded to these consequences is case specific.

35Mr. Borissov will lose his employment as a Toronto police officer. This consequence is a factor I consider but I assign it limited weight. These offences were calculated and of some duration. The loss of his position was an obvious risk he repeatedly chose to take. As the Supreme Court of Canada observed in R. v. Suter, at paragraph 49, “[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished.”

36Mr. Borissov’s arrest and prosecution received significant media attention. I must consider the humiliation Mr. Borissov has experienced, but its weight is limited by the foreseeability of that consequence.

37Furthermore, giving significant mitigation to offenders for the loss of powerful positions or for the notoriety of their conviction would result in inequality under the law. In Marchessault v. The Queen, 41 C.R. (3d) 318 (QC CA), at pp.321-322, Madam Justice L’Heureux-Dubé explained:

…what are characterized here as mitigating circumstances are actually inevitable consequences, and those who expose themselves to them in such circumstances must be ready to face them and must have been able to assess them, particularly where the offence is neither spontaneous nor isolated.

If this reasoning were not acceptable, it would be necessary, in the interests of consistency, to erect as a principle the fact that the higher the rank or office of a figure in society, the better that person is known, the lighter the sentence should be, and, in contrast, the more humble or obscure a person is, the harsher it should be. I do not accept this proposition: the scales cannot accommodate these two unequal measures. Justice must be the same for all, important or insignificant, rich or poor.

Parity and the Crown’s Disposition of Charges Against a Co-Perpetrator

38The principle of parity is codified in Section 718.2(b) which provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. Invoking this principle, the defence submits that I should consider the Crown’s withdrawal of charges against Mr. Mollov. The outcome for Mr. Mollov is irrelevant. He is not a similar offender and he did not commit the offences in similar circumstances. More importantly, I am not privy to the considerations behind this exercise of Crown discretion, nor should I be.

The Thefts and Related Offences

39Counts 1-4, 13-15 and 16-19 relate to the thefts of AK’s bank card and its fraudulent use, the theft of AK’s watch and the efforts to sell it, and the theft and use of LL’s credit card.

40The Crown position is as follows:

For the theft and fraudulent use of AK’s bank card – 18 months For the theft and attempts to sell AK’s watch – 2 years For the theft and use of LL’s credit card – 18 months

41The defence submits that the appropriate sentence is a 3-month conditional sentence in relation to each incident.

42There is a broad range of sentences in cases where police officers have stolen property in the course of their employment. I have carefully reviewed all of the decisions provided by counsel.

43Some of the cases involve joint submissions. Joint submissions are of little if any assistance. They are the product of negotiations between the parties to which the Court is not privy and must be followed unless it is contrary to the public interest.

44In some cases, the offending officer has shown profound insight and remorse and a strong commitment to rehabilitation after committing a single out-of-character offence. In such cases, the Crown position often reflects those factors. Leniency may be justified where the offence is out of character and the offender has shown insight and an acceptance of responsibility.

45Absent exceptional circumstances, the cases establish that significant sentences of incarceration are required where an on-duty police officer commits theft.

46R. v. LeBlanc, 2003 NBCA 75 is close factually. A police officer stole property from a homeowner while investigating a suspicious fire and implicated firefighters in the theft. After a preliminary inquiry, Mr. LeBlanc entered a guilty plea. The conditional discharge imposed by the trial judge was overturned by the New Brunswick Court of Appeal and a 3-month sentence of imprisonment was imposed. In finding that a conditional discharge was wholly inappropriate the Court of Appeal held: “In all but the most exceptional cases, a fit sentence for the offence of breach of trust under s. 122 by an on-duty police officer will feature incarceration for a substantial term.” The Court found that there were “circumstances that compelled restraint” including the inordinate delay in the case, the fact that Mr. LeBlanc had completed all the conditions of his probation and, most importantly, that the Crown recommended a relatively brief custodial term. The Court called these circumstances exceptional and held that “incarceration for a term significantly short of the range that would have been appropriate in first instance (was) now fit.”

47In R. v. Duke, 2018 ONCJ 946, an officer stole $11,500 cash he had seized in a motor vehicle stop. When his home was searched the police also discovered methamphetamines, oxycodone, drug trafficking paraphernalia and an improperly stored firearm. Mr. Duke pleaded guilty. He had a record for an assault committed in the course of his duties, an offence which occurred 8 weeks before the theft. He was sentenced to 17 months incarceration on the theft count.

48R. v. Cook involved an officer who was charged with an attempt to possess a significant quantity of cocaine for the purpose of trafficking. In the course of his duties, he surreptitiously removed packages he believed to contain cocaine. He was also charged with theft in relation to a separate occasion. When working as the Acting Staff Sgt., he stole 21 MP3 players that had been seized by other officers during a traffic stop. The fact that he was the officer in charge when he committed the theft was an aggravating factor. He was sentenced to a total of 5 years and 8 months. The sentence for the theft of the MP3 players and associated breach of trust was 18 months.

49In my view Mr. Borissov’s thefts are at the very highest end of moral blameworthiness. It is difficult to conceive of more vulnerable victims than a suicidal missing person and a dead person. Indeed, by stealing from LL, Mr. Borissov violated the universally-shared moral value of respecting the dead. The callousness exhibited by Mr. Borissov in stealing property during the urgent search for AK is reprehensible. AK’s distraught brother was in the condominium with the officers, Mr. Borissov’s partner had just discovered a suicide note and while Mr. Borissov sent valuable information to the detective office, at least some of his attention was focussed on getting AK’s valuable watch into his possession without detection. Immediately after parting company with AK’s brother, Mr. Borissov sat in his police cruiser Googling to find the value of the watch he had just taken. His callousness continued at the waterfront as he plotted to defraud AK.

50These despicable actions were very calculated. When he provided AK’s bank card and LL’s credit card to his associates to use, the expectation no doubt was that these small transactions would go unnoticed by grieving relatives.

51Apart from the shocking immorality of Mr. Borissov’s conduct, I must consider the impact on public confidence in the police. As I have said, an honest police force is a vital pillar of social order. In our community, it should never occur to a person in distress that they had better lock up their valuables before calling 911.

52A strong denunciatory and deterrent sentence is required in any case where a police officer uses his position as a means to commit crimes against the very people he has sworn to serve and protect.

53I have considered all of the mitigating factors, including his years of police service, his rehabilitative steps, the fact that he is a first offender, and that he will suffer collateral consequences. The principle of restraint requires me to impose the least onerous sentence that will achieve the purposes of denouncing and deterring this conduct. These thefts by a police officer committed against the families of the missing and the dead when they called for help are such profound breaches of the duty to serve and protect that sentences in the upper reformatory and low penitentiary range as sought by the Crown are required.

Attempt to Obstruct Justice

54Counts 6 & 7 relate to Mr. Borissov’s attempt to obstruct justice when he filed a false report concerning his investigation in Mississauga in the hope that his involvement in the theft of AK’s bank card and its subsequent fraudulent use would go undetected.

55The Crown position is 4 years incarceration, and the defence position is a 3-month conditional sentence.

56The Ontario Court of Appeal has considered the appropriate sentence for obstruction of justice in R. v. Schertzer, supra, R. v. Hansen, 2018 ONCA 46, R. v. Watson, 2017 ONCA 346, and R. v. Ruthowsky, supra.

57The conduct in Schertzer was more serious because the officers not only interfered with a police investigation, they also interfered with the courts. They conducted a search before a warrant was authorized, falsified their notes, and committed perjury. The Court of Appeal set aside the 45-day conditional sentences and substituted sentences of 3 years. The Court stated at paragraph 132, “Public confidence in the honesty of the police is fundamental to the integrity of the criminal justice system.”

58In R. v. Hansen, the Court of Appeal upheld a sentence of 5 years imposed on an officer who planted evidence and lied under oath to obtain a search warrant. The attempt to obstruct justice amounted to an effort to frame an innocent person. The Court held as follows:

Police officers occupy a special position of trust in the community. It is all the more so in the criminal justice system. As justice system participants, they owe a duty to the public to uphold the values of the criminal justice system. They have a duty to investigate crime in accordance with the law.

59In R. v. Watson, the officer created false motor vehicle collision reports and false tickets which he deliberately refrained from entering into the court system as part of a scheme to obtain insurance pay-outs by fraud. The sentence of 5 years imprisonment was upheld by the Court of Appeal.

60R. v. Ruthowsky, 2018 ONSC 3247 (S.C.J.), involved egregious attempts to obstruct justice as well as an actual very serious obstruction. An officer in the gang and weapon enforcement unit developed a corrupt relationship with a drug trafficker in return for $240,000 in payments for protection. A jury found him guilty of bribery, attempt to obstruct justice, breach of trust and trafficking in cocaine. The sentencing judge found that the officer had attempted to obstruct justice by involving himself in a bail release and lying to the authorities concerning a breach, by interfering in two traffic stop investigations to dissuade officers from laying charges, and pursuing a possible criminal investigation, by warning a drug dealer about an RCMP investigation and thereby actually obstructing it and by advising about police investigative techniques. The total sentence of 13 years was upheld by the Court of Appeal. A sentence of 8 years was imposed for the obstruction of justice offences.

61Mr. Borissov’s attempt to obstruct justice was a single incident and he did not attempt to obstruct justice in the courts. Nevertheless, it is a serious offence.

62In a very calculated manner, Mr. Borissov steered the lines of inquiry away from himself and his criminal associate by filing the false report. The fact that he provided all of the CCTV footage along with that report is not mitigating because he was aware that another officer knew the footage existed.

63The timing of the attempt to obstruct justice is highly aggravating. We now know that AK was already deceased when the police turned their attention to the use of his bank card in Mississauga, but at the time AK’s body had not yet been recovered. By engaging in the Mississauga investigation as if he had no idea who had used the bank card, Mr. Borissov permitted valuable resources to be wasted while the whereabouts of AK was still undetermined. Indeed, Mr. Borissov spent hours downloading CCTV footage and then created the false report to accompany it while his fellow officers were still actively looking for AK.

64Furthermore, Mr. Borissov’s attempt to obstruct justice was not an isolated out-of-character incident. Two years earlier, he stole LL’s credit card from the scene of an unexpected death. This action had the potential to compromise a criminal investigation since a cause of death had yet to be determined.

65Police investigations are the foundation of the criminal justice system, and their integrity must be protected. Balancing all the factors, the appropriate sentence is 3 years incarceration.

Unauthorized Use of Computer

66Mr. Borissov accessed police computer systems to assist in a scheme to obtain motor vehicles by fraud. The Crown position is 3 years incarceration. The defence position is a 3-month conditional sentence.

67The sentencing range for unlawfully accessing police information is also very broad depending on the purpose of the access, its extent, and its impact.

68Cases where the access was for personal reasons are different than cases where information is passed to criminals.

69In R. v. Senior, 2022 ONSC 136, one of the offences was accessing police computers to obtain information for an undercover officer whom Mr. Senior believed to be a mid-level organized crime figure. The undercover officer advised Mr. Senior that the information would assist him to steal drugs from a rival dealer. Mr. Senior was sentenced to 1 year consecutive for this offence. Mr. Senior was also found guilty of accessing databases for friends and acquaintances for fun or out of curiosity and was sentenced to 90 days imprisonment on that count.

70In R. v. Gregory, 2022 ONCJ 605, a Toronto police officer was found guilty of breach of trust involving the misuse of police information. In that case, the officer’s adult son advised him that he had been duped out of a large sum of money in an illegal counterfeit money scheme and provided a license plate of the person he said was responsible. Mr. Gregory accessed police information to obtain the associated vehicle and told his son the registered owner’s name and address. The officer was aware that his son had a criminal record and was wilfully blind to the risk of retaliation. The son was convicted of manslaughter after carrying out a violent home-invasion robbery at that address. The officer was sentenced to a 12-month conditional sentence.

71In R. v. Kramp, 2014 ONCJ 780, a police officer pleaded guilty to breach of trust for repeatedly providing police information from CPIC and local police records to drug dealers. The Crown sought a 12-month custodial sentence. Due to the officer’s particular circumstances, the judge suspended the passing of sentence and placed the officer on probation. The Court held at para. 64 that, “If there were no exceptional mitigating circumstances Ms. Kramp would be going to jail for the term of imprisonment sought by the Crown….”

72In R. v. Rudge, 2014 ONSC 241, a police officer provided confidential police memoranda including a document that named an informer to the Hells Angels causing irreparable harm to the Niagara Police Force’s ability to investigate organized crime. The Crown proceeded only on a breach of trust which has a maximum sentence of 5 years and Mr. Rudge was sentenced to the 4 years sought by the Crown.

73R. v. Ruthowsky demonstrates that strong denunciatory and deterrent sentences are required when police officers become involved in criminal schemes. In return for bribery payments, the officer provided extensive information to mid-level cocaine dealers including identifying confidential sources, revealing both general and specific information about police investigative techniques, providing advice regarding the optimum timing of drug transactions, and tipping off dealers about police investigations. Before adjusting for totality, the judge determined that 12 years was appropriate for the bribery offences. As I have indicated, the total sentence of 13-years incarceration was upheld on appeal.

74R. v. Watson provides guidance on appropriate sentences where police officers use their position in organized fraud schemes. That scheme resulted in a loss of more than one million dollars to insurance companies. In upholding the 5-year sentence, the Court of Appeal held:

A significant penitentiary term was required despite the appellant’s mitigating circumstances. The fact that the appellant, a police officer who is sworn to uphold the law and protect the public, abused his office by engaging in an organized fraudulent motor vehicle accident scheme is a significant aggravating factor.

75Mr. Borissov’s purpose in accessing the police databases was criminal. He did so to ensure that a fraudulent motor vehicle scheme went undetected.

76He conducted multiple checks on 10 different dates in respect of 4 different vehicles and related persons over a two-year period, from March 2020 to April 2022.

77The defence submitted that Mr. Borissov’s misuse of police information was far less serious than that of Mr. Gregory, who received a 12-month conditional sentence. I agree that Mr. Gregory’s misuse of police information was more egregious. However, Gregory was a guilty plea after a summary election. The judge was satisfied that the offence was completely out-of-character, and that no specific deterrence was required. The judge noted at para. 52 that, “without the mitigating circumstances…, I would have been convinced that an 18-month disposition fell within an appropriate range of sentence.”

78The defence also emphasized that the criminal scheme in this case did not pose a serious risk to public safety. The scheme was very far from being a criminal organization as defined in the Criminal Code, unlike the Hells Angels with whom Mr. Rudge was involved, the fabricated organized crime figure in R. v. Senior, or the multi-kilo level dealers in R. v. Ruthowsky. I recognize that Mr. Borissov was not involved in organized crime or assisting serious violent offenders. That said, vehicle thefts including thefts by fraud are very serious property offences and the Crown’s characterization of Mr. Borissov as “the inside man” is accurate.

79Information security is vital to effective law enforcement. When police officers provide confidential police information to criminals, they undermine the ability of the police to protect the public and to maintain the law. Mr. Justice Hambly observed in Rudge:

The stability of society rests on the integrity of police officers….The Criminal Code places great power in the hands of the police to gather evidence and to arrest suspected offenders…When a police officer uses that power to assist others in the commission of criminal offences he violates the trust society places in him. He also breaches the trust which his fellow officers placed in each other. Police officers will not trust each other unless they are confident that their fellow officers are as dedicated to the high standards of the profession as they are.

80Considering the duration and the relative seriousness of Mr. Borissov’s conduct, and taking into account all the mitigating factors, the least onerous sentence which will achieve the sentencing objectives of denunciation and deterrence is a 3-year penitentiary sentence.

Possession of Motor Vehicle Obtained by Crime

81Count 8 charges Mr. Borissov for being in possession of a motor vehicle that he knew had been obtained by fraud. The vehicle was valued at approximately $60,000.

82The Crown position is one year incarceration. The defence position is a 3-month conditional sentence. This is a serious property offence. It is an aggravating fact that he was a police officer. The appropriate sentence is 4 months jail.

Kienapple

83Count 19, the possession of a credit card obtained by crime, is conditionally stayed pursuant to Kienapple. The offence is subsumed by the theft and the use of the credit card.

84Relying on the Supreme Court of Canada decision in R. v. Bunn, 2000 SCC 9, the defence submits that I should also conditionally stay the theft, trafficking, and fraudulent use counts and sentence Mr. Borissov only on the three related breaches of trust. In R. v. Bunn, a lawyer was found guilty of six counts of theft and six counts of breach of trust. The sentencing judge stayed the theft counts pursuant to Kienapple. That fact was noted by the Supreme Court of Canada without addressing its correctness and so the case does not stand for the proposition advanced by the defence.

85I agree with the Crown that these counts should not be stayed. While the thefts, the fraudulent uses and the trafficking offences share the same facts as the related breaches of trust, they do not involve the same delicts. Those counts protect property rights. Breach of trust protects the public from abuses of the public trust. See R. v. Cook, 2010 ONSC 4534, at paragraph 38. I decline to conditionally stay any count other than count 19.

Totality

86Where consecutive sentences are imposed, the principle of totality requires a Court to adjust the sentence to ensure that it does not exceed the overall culpability of the offender. Mr. Borissov breached the public trust in three distinct and very serious ways. In my view the 7-year total sentence sought by the Crown is appropriate.

87I have found that the appropriate sentences are:

Counts 1-4 Theft trafficking and use of AK’s debit card and breach of trust – 18 months Counts 13-15 Theft trafficking of AK’s watch and breach of trust – 2 years Counts 16-18 Theft and use of LL’s credit card and breach of trust – 18 months

A total sentence of 5 years for the thefts and frauds is appropriate.

Counts 6-7 Attempt to obstruct justice and breach of trust – 3 years Count 11 Unauthorized computer checks – 3 years Count 8 Possession of Stolen Property – 4 months

88The principle of totality requires an adjustment so that the total sentence is proportionate to Mr. Borissov’s overall culpability. In my view, adjusted for totality, the theft and fraudulent use offences warrant a total of 3 years, the attempt to obstruct justice warrants 2 years consecutive, and the use of police databases warrants 2 years consecutive.

89I will adjust the sentence as follows:

Count 1 – 18 months Count 2 – 18 months concurrent with count 1 Count 3 – 18 months concurrent with count 1 Count 4 – 18 months concurrent with count 1 Count 6 – 2 years consecutive Count 7 – 2 years concurrent with count 6 Count 8 – 4 months concurrent with count 1 Count 11 – 2 years consecutive Count 13 – 18 months concurrent to count 1 Count 14 – 18 months concurrent to count 1 Count 15 – 18 months concurrent to count 1 Count 16 – 18 months consecutive Count 17 – 18 months concurrent to count 16 Count 18 – 18 months concurrent to count 16

90Mr. Borissov’s conduct in stealing from the very persons he was duty-bound to protect, and in exploiting the investigative powers with which he was entrusted, must be met with a stern denunciatory and deterrent response. Otherwise, public confidence in the police and in the justice system will be eroded. Respect for the law and the maintenance of a just, peaceful, and safe society depend on public confidence in the police. Nothing short of the global sentence of 7 years sought by the Crown would adequately address the pressing need to denounce and deter such profound and repeated abuses of police power.

Ancillary Orders

I. Restitution

91Restitution orders achieve two important sentencing objectives: they provide reparations to victims and they promote a sense of responsibility in the offender.

92Despite those laudable objectives, I am not making a restitution order for the value of the watch for two reasons. I am not satisfied that the value of the watch is readily ascertainable as Section 738 requires. Furthermore, I am imposing a lengthy period of incarceration.

II. DNA

93I am making an order that Mr. Borissov provide a sample of his DNA. The Section 122 breaches of trust are secondary designated offences. I am satisfied that Mr. Borissov’s privacy interests are substantially outweighed by the public interest in the detection and prevention of crime.

III. Victim Fine Surcharge

94Mr. Borissov is in a position to pay the victim fine surcharges.