Court of Appeal for Ontario

Date: 2017-06-01 Docket: C61334 Judges: MacPherson, Blair and Epstein JJ.A.

Between

Her Majesty the Queen Respondent

and

Scott Heron Appellant

Counsel

Andrew Furgiuele, for the appellant David Quayat, for the respondent

Heard: May 18, 2017

On appeal from: The conviction entered on September 18, 2015, and the sentence imposed on November 27, 2015, by Justice James Alexander Ramsay of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

R. A. Blair J.A.:

Introduction

[1] The appellant was at the relevant times a police officer with the Niagara Regional Police. He was convicted of conspiracy to smuggle cheese into Canada from the United States without paying the required duties, and related charges (in contravention of the Customs Act), and of breach of trust by a public official (in contravention of the Criminal Code). He was sentenced to three months' imprisonment for the smuggling offences and to one month's imprisonment, consecutive, on the breach of trust offence.

[2] The appellant does not appeal from the smuggling convictions. However, he seeks to set aside his conviction for breach of trust. He also seeks leave to appeal, and if leave is granted, to appeal from both sentences imposed.

The Cheese Smuggling Scheme and CPIC Enquiry

[3] The trial judge succinctly described the gist of the smuggling offences in the following way, in his reasons for sentence:

The offender, a police officer, was the organizer of a racket in which another constable smuggled cheese across the border from Buffalo to Fort Erie, which cheese was sold to local restaurants for profit, at discount prices that were made possible by the evasion of the 246 percent duty. About $133,000 of cheese and other food was smuggled, with the result that about $325,000 worth of duty was evaded.

[4] The scheme began in 2009 when the appellant asked his friend, Cst. Purdie (the "other constable") to bring some cheese into Canada from a pizzeria in Buffalo. The scheme expanded and continued until February 2012. Cst. Purdie never declared the cheese at the border, nor did he or the appellant ever pay the required duty.

[5] The breach of trust charge related to the appellant's running of a CPIC check on the license plate of the vehicle operated by Cst. Purdie on February 19, 2012 – the day upon which Cst. Purdie, in the United States at the time on a return run, advised the appellant that he thought he was being followed, and it appeared that the conspiracy may have been discovered.

The Conviction Appeal

[6] The appellant raises one ground on the conviction appeal. He submits that the trial judge erred with respect to the breach of trust conviction in finding that the only reasonable inference to be drawn from the circumstances relating to the appellant's CPIC check on February 19 was that he made the check in order to evade detection and try to determine to what extent his police colleagues were on to him and Cst. Purdie.

[7] I do not accept this submission.

[8] The appellant is a police officer. He is entitled to access the CPIC system, but only for matters relating to his duties as a police officer.

[9] The CPIC enquiry provides information not only about the subject of the search but also about who else has conducted a similar search within the previous 120 hours. The appellant's query was made at the beginning of his first shift after learning from Cst. Purdie that enquiries were being made of their supplier and contact, that Cst. Purdie was being followed, and that the scheme may have been compromised. If someone else – someone else who could be identified – had conducted a similar enquiry recently it would suggest that the police were investigating Cst. Purdie and him and provide insight into what was going on at the time. As the trial judge said:

What reason did [the appellant] have to run Purdie's plate on February 19th, 2012? Given the timing of this query in relation to the disclosure through [the supplier and the contact] that the police were investigating Purdie and [the appellant] in particular, the only reasonable answer is his knowledge that he had been involved in something wrong with Purdie and his desire to see to what extent his colleagues were on to them.

[The appellant] made the query on his first shift at work after finding out that the police were asking [the supplier] about Purdie and him, a fact that must have been disconcerting for him. As I have said, I have no doubt that he made this query in hopes of evading detection. The conspiracy was over. Purdie had stopped running cheese but it was to [the appellant's] benefit to know what was going on with his colleagues, otherwise why would he have taken the risk? He knew that these queries are tracked and a query of Purdie is not so easily explained as a query of himself or his wife.

[10] I agree with the Crown's submission in its factum that the overwhelming, irresistible and only reasonable inference on the record was that the appellant conducted the CPIC query in order to gain insight into the status of the police investigation regarding the cheese smuggling operations. Indeed, appellant's counsel at trial did not suggest there were any other plausible alternative inferences, and on appeal Mr. Furgiuele candidly declined to do so either. The appellant did not testify to offer any.

[11] In my view, the trial judge did not err in concluding on the totality of the circumstantial evidence that the appellant conducted the CPIC enquiry for the reasons he indicated, and not for legitimate reasons relating to his duties as a police officer.

[12] The conviction appeal must be dismissed.

The Sentence Appeal

[13] The appellant has served his custodial sentence. He seeks to set aside that sentence, however, because there are serious implications for his continued employment as a police officer if the sentence remains on his record. He raises two issues with respect to sentence.

The Affidavit of Detective Sergeant Adamczyk

[14] First, he submits that the trial judge erred by admitting, at the sentencing hearing, the affidavit and testimony of a police officer containing evidence of a breach by the appellant of his bail conditions between the date of conviction and the sentencing hearing (for which an untried charge was outstanding) and other evidence. Mr. Furgiuele argued very ably that this evidence was inadmissible by virtue of s. 725 of the Criminal Code because it related to outstanding but untried charges and the appellant did not consent to its admission.

[15] I am not persuaded of this, however, and accept Mr. Quayat's equally able argument for the Crown that s. 725 is not engaged in the circumstances of this case.

[16] I have reviewed the trial judge's ruling and his reasons for sentence. He made it very clear that "[n]one of this can be used to prove aggravating facts without invoking the procedure in Section 725, which is not available unless the accused consents", and concluded that:

As long as it is kept in mind that [the impugned affidavit evidence] can only be used to shed light on relevant factors of his character and none of it should result in the imposition of any sentence that is not fit for offences of which he has been convicted, I think it is admissible.

[17] In the course of his reasons for the ruling, the trial judge stated that the evidence was admissible as relevant to the conditions of sentence and the appellant's ability to follow conditions, as well as to the issues of the appellant's drinking and the quality of his remorse. However, I see nothing in the reasons for sentence to indicate that the trial judge relied on the tendered evidence to conclude that the appellant's outstanding and untried breach of recognizance charge had any impact on the sentence he imposed. Only a portion of the affidavit dealt with that issue.

[18] Other portions of the affidavit dealt with the appellant's attitude (e.g., text messages in which he referred to Crown witnesses who had testified against him as "rats"), his continuing difficulties in keeping his alcohol and drug addictions under control, his relationship with his wife, and the extent to which he had any remorse for the crimes he had committed. The trial judge relied on these portions of the affidavit because they bore upon the current circumstances, character and reputation of the appellant. This information was all directly relevant to the sentencing objectives and principles that were in play and was properly considered notwithstanding the s. 725 considerations; see R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728, at para. 27.

The Medical Evidence

[19] Secondly, the appellant submits that the trial judge erred on sentence by improperly discounting the uncontradicted medical evidence concerning the impact incarceration would have on the appellant. I disagree.

[20] In my view, it cannot be said that the trial judge discounted this evidence in his deliberations. Contrary to the appellant's submissions, the trial judge explicitly stated that he was taking into account the fact that imprisonment would not be easy on the appellant both because he is a police officer and because of his medical and mental health issues. It was open for the trial judge to characterize the evidence of the appellant's doctor to the effect that a short term in prison would be life-threatening, as an exaggeration. The trial judge's findings in this regard are entitled to deference.

The Fresh Evidence

[21] The appellant sought to tender fresh evidence on appeal. It consists of an affidavit of the appellant explaining the difficulties he endured while incarcerated, and an affidavit from his doctor providing an update regarding his health concerns.

[22] We accepted the fresh evidence, but, given the disposition of the appeal, it does not assist.

Conclusion

[23] Appellate courts afford wide latitude to a sentencing judge. Absent an error in principle, the failure to consider a relevant factor, or an overemphasis of appropriate factors, they will only interfere to vary a sentence imposed at trial if the sentence imposed is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11 and 39-44. For the foregoing reasons, I see no such errors in the trial judge's approach to the sentencing of the appellant.

[24] The sentences imposed by the trial judge are fit. Indeed, if anything, they are favourable to the appellant.

[25] I accept that the appellant has gone through a difficult period in his life, in terms of his physical and mental health and his addiction issues and that these factors bear heavily on his personal circumstances. However, while those are important and relevant considerations, I agree with the Crown that medical conditions cannot generally be used to avoid what is otherwise a fit and proper sentence.

[26] The trial judge recognized that the appellant was a first-time offender. However, the appellant is also a police officer holding a public office. The public is entitled to expect honesty and not corruption in the members of its police forces. In this case, as the trial judge noted, the crime was significantly aggravated by the fact that the appellant conspired with Cst. Purdie to have Cst. Purdie use his credentials as a police officer to move across the border without scrutiny in order to facilitate the scheme. I agree with the trial judge that:

It sends a very discouraging message to the public to let them know that police officers can get away with profiting from abuse of their credentials.

[27] I also agree that the appellant's resort to CPIC with a view to protecting his criminal interests, as best he could, constituted a serious breach of public trust in the circumstances.

[28] The sentences imposed of three months' imprisonment for the smuggling offences and one month's imprisonment, consecutive, for the breach of trust offence are well-justified in the circumstances.

Disposition

[29] For the foregoing reasons, I would dismiss the appeal as to conviction. I would grant leave to appeal sentence, but dismiss the sentence appeal as well.

Released: June 1, 2017

"JCM" "R.A. Blair J.A." "JUN -1 2017" "I agree J.C. MacPherson J.A." "I agree G.J. Epstein J.A."