Court File and Parties

Ontario Court of Justice

Date: 2018-09-27

Court File No.: Brockville 180059

Between:

Her Majesty the Queen

— AND —

George Duke

Before: Justice Kimberly E.M. Moore

Heard on: January 17, 2018 and June 4, 2018

Reasons for Judgment released on: September 27, 2018

Counsel

Paul McDermott — counsel for the Crown

Mark Wallace — counsel for the accused George Duke

MOORE J.:

INTRODUCTION

[1] Every day, police officers across this country put on the uniforms of their respective police services, pick up their badges, and report for duty. These police officers respond to calls for service. They patrol our highways. They attend at events to keep the peace. They engage in education at schools and in the community. They investigate offences. They often put their lives at risk, and do so in order to keep our communities safe. They undertake their responsibilities and obligations knowing that if they exceed their jurisdiction, Courts will utilize the Canadian Charter of Rights and Freedoms to ensure that the rights of citizens are protected. For undertaking these risks, responsibilities and obligations, they deserve the respect and trust of those who they serve.

[2] When a police officer commits an offence against the very community he serves, this erodes the respect and the trust placed in that officer. In addition, such actions have the potential of tarnishing the reputations of those police officers who continue to uphold their oaths, and who continue to act with integrity and honesty as they execute their duties.

BACKGROUND

[3] On January 17, 2018 Mr. Duke entered pleas of guilt to the following six offences:

• Count 1 - theft over $5000;
• Count 2 - breach of trust by a public officer;
• Count 3 - careless storage of a firearm;
• Count 4 - careless storage of ammunition;
• Count 5 - possession of methamphetamine; and
• Count 6 - possession of oxycodone.

[4] An agreed statement of facts, including photographs, was filed on consent.

[5] A report from a psychiatrist, Dr. Brad Booth (dated August 30, 2017), was filed with the Court. I was advised that Counsel would engage in discussions as to whether Dr. Booth would be called as a witness on the sentencing hearing.

[6] The matter was adjourned to June 4, 2018 for the sentencing hearing. At that time, a letter from Dr. Booth was filed, on consent, which had addressed a number of questions posed by Mr. McDermott. Dr. Booth's attendance was thus not required.

[7] Submissions were made by counsel. Counsel had previously provided the Court with a comprehensive chart of sentencing cases wherein uniform or civilian members of police services had been convicted of thefts committed during the execution of their duties. By the time of the sentencing, both counsel agreed that the case that was most instructive for the matter before me, was that of R. v. Cook, 2010 ONSC 5016.

[8] After submissions were completed, the matter was adjourned for sentencing. Mr. Duke asked that the matter return in September for sentencing, as he had personal matters to take care of prior to his anticipated incarceration.

BACKGROUND OF THE OFFENDER

[9] Mr. Duke is 55 years of age.

[10] He is divorced, and is on good terms with his ex-spouse.

[11] He is not currently in a relationship.

[12] He has two adult children, both of whom are in post-secondary education at this time. Mr. Duke contributes financially each month on behalf of his children.

[13] Mr. Duke's father is deceased and while he talks to his mother monthly, she has not visited the area in several years. She currently resides in Regina, Saskatchewan.

[14] Mr. Duke has three siblings, and has some contact with his older sister (who resides in Regina) and no contact with his brother (who lives in Manitoba) or his other sister (whose address is unknown to Mr. Duke).

[15] Mr. Duke was a member of the Canadian Forces from the age of 16 to 32. He completed his high school education while serving in the military, and also completed three years of university while serving in the military. He still has one year left to complete his university degree.

[16] After leaving the military at the age of 32, Mr. Duke joined the Ontario Provincial Police. He worked with the Ontario Provincial Police in Ottawa, Petrolia, Prescott and Brockville. He is currently suspended with pay. Once he has been sentenced to a period of custody, Mr. Duke is aware that he will lose his employment.

FACTS

[17] An investigation was commenced into the on-duty actions of Provincial Constable George Duke, a member of the Ontario Provincial Police. No information was provided to the Court as to when this investigation began, or the basis of the investigation.

[18] On October 30, 2015, as part of this plan, two undercover officers were acting as illicit money couriers. They used a rental vehicle, and drove along the 401 while Mr. Duke was working.

[19] The undercover officers were in possession of $115,000 in cash. All but $3,000 was placed in a gym bag in the trunk of the vehicle. $1,500 was in an envelope in the visor on the driver's side of the vehicle and $1,500 was in the pocket of one of the undercover officers. The money in the gym bag was divided into bundles as follows: $10,000 x10; $7,000 x1; $5,000 x1.

[20] Mr. Duke stopped the vehicle for speeding (as the undercover officer driver had been driving at 173 kms per hour in a 100 km/hr zone). Despite the language barrier, Mr. Duke was able to arrest the undercover officer driver. Mr. Duke seized the $1,500 located on the driver and asked him if he could search the trunk. He was granted permission and thus located the gym bag.

[21] Mr. Duke released the undercover officer driver on a recognizance.

[22] Mr. Duke then lodged the evidence. The money seized from the undercover officer driver was accounted for, as Mr. Duke had allowed the undercover officer driver to use $500 for his recognizance of bail, had returned $200 to him so that he could return to Toronto, and had properly lodged the remaining $800 as evidence.

[23] After lodging the evidence Mr. Duke returned home, while still under the surveillance of the investigators. Other officers with the Asset Forfeiture Unit examined the seized evidence, and learned that one bundle of $10,000 cash was missing as well as the envelope containing $1,500.

[24] Shortly after returning home, Mr. Duke left his residence, again followed by investigators, and was arrested shortly after. A search warrant was obtained and Mr. Duke's residence was searched.

[25] Mr. Duke had $840 of the $1,500 from the visor on his person. The envelope was located on his bathroom floor. The remaining $660 is still unaccounted for. The bundle of $10,000 was located in the rafters of Mr. Duke's basement.

[26] During the search, police located a rifle in the master bedroom stored in a careless manner. In addition, ammunition was stored throughout the house in a careless manner.

[27] Two baggies containing 7.9 and 14.6 grams of methamphetamine respectively were located on a shelf in the closet of the master bedroom.

[28] A pill bottle in the name of Dan Sparring was located on top of the DVD player in the master bedroom. This was in plain view, and contained 57.5 oxycodone pills. I was advised that no inquiry was made as to when, or how, these pills were obtained, and no information was provided to me as to who Mr. Sparring is.

[29] Other items located in Mr. Duke's residence included the following:

• Two small bags of marijuana – located in the master bedroom
• A digital scale on the love seat in the basement tv room
• Sealed and unsealed exhibit envelopes – in the basement tv room
• 4 sealed exhibit envelopes containing marijuana - in a box under the stairs, in the basement storage area

[30] Mr. Duke's locker at the Ontario Provincial Police detachment was also searched. A pill bottle in the name of Helen Brown, containing 93 blood pressure pills was located in the locker itself.

[31] In Mr. Duke's duty bag, which was also found in Mr. Duke's locker, the following items were located:

• Clear plastic baggie containing 10.1 grams marihuana
• Large plastic freezer bag containing 4.2 gram hash
• Small baggie containing 4.6 gram marihuana
• Vacuum sealed bag containing 50.5 grams marihuana
• 4 small dime bags containing crack cocaine – total of .8 grams
• Loose marihuana – 1.6 grams

REPORTS AND DOCUMENTS FILED

[32] No Pre-Sentence Report was requested in this matter.

[33] There were no Victim Impact Statements filed.

[34] Dr. Brad Booth prepared a report on August 30, 2017, and a subsequent letter to clarify the contents of that report on May 15, 2018.

[35] Both counsel agree that I may accept the diagnoses made by Dr. Booth that Mr. Duke suffers from major depressive disorder and post-traumatic stress disorder. Dr. Booth was very candid in his report, indicating that it was not possible for him to comment on the extent these disorders affected Mr. Duke on the date of the offence. Dr. Booth could only state that it was his psychiatric opinion that Mr. Duke did in fact suffer from these disorders at the time he committed the offences on October 30, 2015, and that these disorders may have indirectly influenced Mr. Duke's decision-making.

[36] It was also clear from the submissions of Mr. McDermott and Mr. Wallace, that I may rely upon Mr. Duke's recounting to Dr. Booth of his family history, relationships, his education, the timing of his employment and most importantly the psychological treatment he has sought out over the years.

[37] However, both counsel agree that I should not accept as factual the explanations for Mr. Duke's conduct, provided by Mr. Duke to Dr. Booth, and referred to in the report. Mr. Wallace advised the Court that he was not calling any evidence to support his client's explanations for why he committed these offences, nor to support his client's statements as to mistreatment he claimed to have been subjected to by his supervisors.

[38] Mr. Wallace also filed a psychiatric assessment report for the Psychological Trauma Program, located at the Centre for Addiction and Mental Health. Mr. Duke was seen at this program on May 4, 2018, and the report was prepared on May 15, 2018. This report confirms the diagnoses of major depressive disorder and post-traumatic stress disorder.

[39] Mr. Wallace also filed two Performance, Learning and Development Plans, completed by Mr. Duke's supervisors in September 2014 and August 2015. Each of these reports was prepared by Mr. Duke's supervising Sergeant, and approved of by one or more managers (a Staff Sergeant or Inspector, or both). Each was signed by Mr. Duke. Mr. Duke had the opportunity to add additional comments to these plans prior to signing each, but no comments were included.

[40] The Performance, Learning and Development Plan dated September 14, 2014 includes the following comments:

• PC Duke is consistent with his traffic enforcement duties and contacts
• PC Duke is an important member of the Platoon and his efforts make an important contribution to Detachment/Platoon Objectives

[41] In that Plan, Mr. Duke was noted to meet each of the competencies referred to.

[42] The Performance, Learning and Development Plan dated August 26, 2015 includes the following comments:

• He projects a positive image to the community in which he polices.
• PC DUKE is amongst one of the hardest working officers that I have worked with.
• He is able to control stress and remains calm when dealing with the public as he communicates and makes decisions.
• PC DUKE has surpassed the detachment expectations in the area of traffic initiatives and enforcement.
• During this evaluation period PC DUKE has received three 233-10 for his professionalism, teamwork and dedication. This refers to commendations received.
• George – your contributions to supporting the detachment and organizational goals are noted and appreciated. As a senior member your work ethic and attitude are watched by other younger members, so please continue to put forth the strong effort that you do. Thank you for your efforts.

[43] In this 2015 plan, completed two months before the offences I am sentencing Mr. Duke for, he was noted as meeting or exceeding each of his competencies.

POSITIONS OF THE PARTIES

[44] On behalf of Mr. Duke Mr. Wallace submits that the appropriate sentence is one of twelve months in custody. I am asked to recommend that Mr. Duke serve that sentence at the St. Lawrence Valley Correctional and Treatment Centre.

[45] On behalf of the Crown, Mr. McDermott submits that a sentence of two years less a day is the appropriate sentence in this case. But for the plea of guilt and the mental health diagnoses of Mr. Duke, Mr. McDermott advised that he would have sought a sentence of 3 years.

[46] Mr. McDermott also asks that I make orders for Mr. Duke to be prohibited from possessing firearms, and that Mr. Duke be ordered to provide a sample of his DNA.

[47] I am not asked to place Mr. Duke on probation following the completion of his jail sentence. Nor am I asked to make any orders for restitution.

ADDRESS BY OFFENDER

[48] Mr. Duke chose to address the Court, as is his right pursuant to section 726 of the Criminal Code of Canada.

[49] Mr. Duke acknowledged that there was no explanation for his actions, and advised that nothing he could say would minimize the effect of his actions on his own life, and on the comrades with whom he worked every day. He offered an apology to those comrades, and stated he could not express his sorrow sufficiently.

APPLICABLE LEGISLATION AND LEGAL PRINCIPLES

[50] The purpose, principles and objectives of sentencing are set out in Part XXIII of the Criminal Code.

Purpose of Sentencing

[51] Section 718 of the Criminal Code is the starting point for all sentencing matters. This section states as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

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

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

(d) to assist in rehabilitating offenders;

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

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[52] In the case before me the objectives of denunciation and deterrence are the most pressing objectives to address.

Other Sentencing Principles

[53] There are other sentencing principles and objectives set out in section 718.2 of the Code, including consideration of aggravating factors, proportionality, totality and parity.

Statutorily Aggravating Factors

[54] Section 718.2(a)(iii) of the Code states that:

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

[55] Both counsel agree that the offences committed are significant breaches of trust. The harm caused to the public, and also the potential harm to the reputation of the Ontario Provincial Police, is not disputed.

Proportionality

[56] The principle of proportionality is set out in section 718.1 of the Code, wherein Courts are reminded that, "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[57] The Supreme Court of Canada addressed the issue of proportionality, which is defined in the Criminal Code as the fundamental principle of sentencing, in R. v. Ipeelee, 2012 SCC 13, at paragraph 37:

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.

[58] The principle of proportionality reminds Courts that they have an obligation to assess not only the offence, but also the specific offender being sentenced. Sentencing is neither scientific nor formulaic. It requires a careful balancing of factors.

Totality

[59] The principle of totality is set out at section 718.2 (c) of the Criminal Code and states that, "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh."

[60] In the case before me, neither counsel made submissions as to how the sentence imposed ought to be attributed on each count. I was, however, quite properly asked to find that the offences of theft and breach of trust are the most serious offences of those before me.

Parity

[61] Section 718.2 (b) of the Criminal Code states that "a sentence should be similar to sentences imposed for similar offenders for similar offences committed in similar circumstances."

[62] In R. v. Macri, [2012] S.J. No. 386 (Prov. Court), the Court stated, at paragraph 40, that, "[t]he principle of parity is embodied in section 718.2 (b) of the Criminal Code. It dictates that an offender's sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Parity, however, does not mean uniformity. The proportionality principle, and the individual nature of sentencing means that disparity can exist where circumstances warrant. Such disparities, however, should not be egregious, or unjustified."

[63] In order to ensure that the sentence imposed achieves the principle of parity, it is important to consider sentences imposed in similar cases.

MAXIMUM SENTENCES

[64] Prior to addressing the case law on breaches of trust and theft, I wish to set out the maximum sentences available for each of the offences before me.

[65] The Crown proceeded by indictment.

[66] Thus, the maximum sentences are as follows:

• Count 1 – theft over – 10 years in jail
• Count 2 – breach of trust by public officer – 5 years in jail
• Counts 3-4 – possession of firearm and ammunitions – 2 years in jail
• Counts 5-6 – possessions of Schedule 1 drugs – 7 years in jail

CASE LAW

[67] As indicated previously, prior to this matter proceeding to sentence, counsel prepared a comprehensive chart setting out sentences that had been imposed in cases such as the one before me today. Those cases span a period from 1957 to 2016, and include decisions from New Brunswick, Nova Scotia, Newfoundland, Quebec, Alberta, British Columbia and Ontario. In the most relevant of the cases provided, sentences ranged from that of 3 months custody to 4 years for the offence of theft committed by a uniform or civilian member of a police service.

[68] Both Mr. McDermott and Mr. Wallace relied only upon the decision of R. v. Cook, supra, in making their submissions. Having carefully reviewed that decision, I am satisfied that R. v. Cook, supra, is of great assistance in determining the appropriate sentence to impose in cases such as these.

[69] In R. v. Cook, supra, the accused was a 43-year-old police officer who had stolen 15 packages of what he believed to be cocaine from a crime scene. Unfortunately for Mr. Cook, the packages actually contained flour, and one package contained an RCMP tracking device. This tracking device led the RCMP to his residence. The police seized the 15 stolen packages, as well as other stolen property and also half a kilogram of marijuana.

[70] Mr. Cook was convicted following a lengthy trial in the Superior Court of Justice. The Court found that the offences were motivated by greed. There was no indication that Mr. Cook suffered from any mental disorders, or mental health issues.

[71] Mr. Cook had no prior criminal record, and an "unblemished" history as a police officer as well as over 44 letters of support. However, of great significance was the fact that ten prosecutions, for which Mr. Cook was an essential Crown witness, had to be stayed or withdrawn as the Crown no longer had a reasonable prospect of conviction due to the offences committed by Mr. Cook. This significant, and actual, impact on other prosecutions is not present in the case pertaining to Mr. Duke. In addition, of significant contrast, Mr. Duke plead guilty and does have mental health issues.

[72] Mr. Cook was sentenced to four years for attempted possession of cocaine; 18 months concurrent for theft; 18 months consecutive for breach of trust and two months consecutive for possession of marijuana.

[73] I have carefully reviewed the cases referred to in the chart prepared by counsel, including the following: R. v. Hunt, [1978] B.C.J. No. 92 (C.A.); R. v. Shaw, [1968] B.C.J. No. 10 (C.A.); R. v. Cusack; R. v. Leblanc, 2003 NBCA 75; R. v. McClure, [1957] M.J. No. 3 (C.A.); R. v. Lajeunesse, [2014] O.J. No. 2602 (S.C.J.); R. v. Tiller, [2016] B.C.J. No. 210 (S.C.); R. v. Read, [2015] B.C.J. No. 1333 (P.C.); R. v. Ryan, [2004] N.S.J. No. 338 (S.C.); R. v. Smith, [2015] B.C.J. No. 1537 (S.C.); R. v. Rudge, [2014] O.J. No. 137 (S.C.J.); and R. v. Demers, [2012] N.S.J. No. 735 (P.C.).

[74] I note that there are similarities between some of those cases, and the one before me, and also many differences. In a number of those cases, the offences took place over a period of months, or even years.

[75] By way of example of one such case which took place over a period of many years, I refer to the decision of R. v. Smith, supra. The accused was an exhibits custodian and she stole more than $116,000. She had a gambling addiction. The Court noted the following mitigating and aggravating factors, at paragraphs 52-53:

52 In aggravation, is the following:

1. Ms. Smith's crime constituted a serious and continuing abuse of an important position of trust, with a known and substantial risk of compromising criminal prosecutions and the integrity of the police.

2. Ms. Smith's crime featured a criminal course of conduct spanning the lengthy timeframe of four-and-one-half years, employing a sophisticated scheme requiring considerable thought and concealment.

(3) Ms. Smith's crime involved theft of an amount of money in excess of $100,000, with no possible recovery of it, and no reasonable prospect of full restitution.

4. Ms. Smith's crime resulted in compromising the integrity of 99 police investigative files.

5. Ms .Smith's crime necessitated a lengthy and costly police investigation.

6. Ms. Smith's crime has had a significant and enduring negative impact on personnel at the Mission RCMP Detachment.

53 In mitigation:

1. Ms. Smith entered a guilty plea.

2. Ms. Smith expressed sincere remorse for her actions.

(3) Ms. Smith expressed a willingness to make restitution, albeit in payments of $100 per month.

[76] Ms. Smith sought a conditional sentence and the Crown sought a sentence of 2-3 years. The Court imposed a sentence of 18 months in custody.

[77] In R. v. Rudge, supra, the accused police officer was sentenced to four years for the offence of breach of trust. He had turned over investigation materials, including four police intelligence memorandums, to the Hells Angels. Mr. Rudge's actions compromised the police ability to investigate and prosecute a number of individuals. It should also be noted that Mr. Rudge was acquitted during his first trial, and convicted following his re-trial in the Superior Court of Justice.

[78] I make reference to these cases simply to illustrate that there is a range of sentences available in cases such as these. Sentences imposed range from those of 3 months to four years. I am also mindful of the fact that the maximum sentence for breach of trust is that of five years.

ANALYSIS

[79] Before I can determine the appropriate sentence in this case I must first review the mitigating and aggravating factors.

Mitigating Factors

[80] There are a number of mitigating factors in this case.

Guilty Plea

[81] Mr. Duke entered a plea of guilty. As set out in R. v. Sahota, [2015] O.J. No. 2385 (C.A.), I am permitted to consider the strength of the Crown's case in assessing the weight to be attributed to the plea. There is no doubt that the evidence of the Crown is very strong in the case before me. Even where the evidence is strong however, the Court must consider the impact of a guilty plea on the administration of justice.

[82] As stated at paragraph 14 of R. v. Faulds:

14 The effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable. That is this case. Even where the plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide a degree of finality from the perspective of the victims which would not exist without the plea.

[83] If Mr. Duke had elected to have a preliminary inquiry or a trial, this would have resulted in significant judicial resources being required, and would have necessitated the attendance of numerous police officers and other witnesses.

[84] Further, I accept that Mr. Duke's guilty plea and his comments in addressing the Court, are sincere indications of his remorse for his actions.

[85] Finally, both counsel agreed that, from the time of the charges being laid, until the pleas were actually entered, Mr. Duke had always maintained an intention to plead guilty. These matters have never been set for a preliminary inquiry or for a trial.

Mental Health Diagnoses

[86] I also accept the finding of Dr. Booth, and the diagnoses of post-traumatic stress disorder and major depressive disorder. I accept that Mr. Duke had been struggling with mental health issues for many years.

Family and Community Support

[87] Mr. Duke has the support of his ex-spouses and his children, as well as one of his siblings. He has also engaged with counselling or treatment since 2017, including a hospital stay at the Homewood Hospital Centre from January 25, 2017 to March 22, 2017 (in the PTSD program).

Previous Good Character in the Execution of His Duties

[88] I have already referred to the Performance, Learning and Development Plans prepared for Mr. Duke in September, 2014 and August, 2015. These reports show that Mr. Duke was seen by his supervisors as a dedicated, hard-working and respected member of the Ontario Provincial Police.

Impact of Conviction Upon Employment

[89] Mr. Duke will lose his employment once he commences his jail sentence. There are, I expect, some members of the public who are dismayed that Mr. Duke has been suspended with pay since these charges were laid almost three years ago. While these feelings are understandable, it is also important to note that until a finding of guilt was made, Mr. Duke was presumed to be innocent. Once that finding was made, there were several very important steps that had to take place, in order to prepare for a sentencing of this nature.

Impact Upon George Duke Serving Sentence in a Correctional Institution

[90] It does not require an evidentiary foundation to be laid to determine that the impact on Mr. Duke, as a former police officer, in serving a jail sentence, will be significant. It is certainly assumed that he will serve his sentence separated from other offenders.

[91] In R. v. Cook, supra, the Court had the following to say about the impact upon offenders such as Mr. Duke when they are incarcerated. While Hill, J. did not specifically note the loss of employment and the anticipated protective custody as mitigating factors, these were still factors that he carefully considered. The Court stated as follows at paragraphs 41-43:

41 A few words deserve to be said regarding two features of the sentencing of a police officer which impact on the severity of punishment - the consequential impacts of loss of employment, and, incarceration in protective custody.

42 In R. v. Feeney et al., supra, at para. 8, the court approved the statement in R. v. Cusack, supra, at para. 13, that in the case of conviction for serious breach of trust in the course of duty, the "act will result not only in dismissal from the position of trust but also in the imposition of substantial punishment". While a police officer who breaches the public trust brings upon him or herself the consequence of dismissal, that penalty falls to be considered within the totality of the circumstances worthy of review by a sentencing court: R. v. Hunt, [1978] B.C.J. No. 92 (C.A.) (QL) at paras. 3, 11; R. v. Ranson, supra, at p. 3; R. v. Keyte, supra, at p. 2. That said, the jeopardy of loss of employment on the part of a police officer cannot "trump the pressing need for denunciation and deterrence": R. v. Preston, 2008 ONCA 530 at para. 3.

43 Because an inmate who is known to be, or discoverable as, a former police officer is at risk from general population prisoners, such an offender will almost inevitably serve much or all of the sentence in protective custody. This reality, involving as it does more limited social contact and institutional amenities, ordinarily warrants consideration in mitigation of punishment: R. v. Strawhorn, [2008] VSCA 101 at para. 219 ("the increased difficulties that he would be likely to experience whilst in custody ... by reason of ... his status as a protected person"); R. v. Ranson, supra, at p. 3 ("The judge recognised ... that prison would be more difficult for them than others").

Aggravating Factors

[92] There are numerous aggravating factors to be considered in this case.

Criminal Record

[93] Mr. Duke has a criminal record, for an offence committed eight weeks prior to the offences for which I am sentencing Mr. Duke today. The facts of that prior conviction were that on September 2, 2015 Mr. Duke was on duty, and he stopped a vehicle. During the course of this traffic stop, he assaulted a 71-year old man and caused the victim's wrists to bleed as a result of how he placed handcuffs on him.

[94] Mr. Duke entered a plea of guilt before me on September 13, 2017. I adhered to the joint position of counsel, and imposed a fine upon Mr. Duke. I note that the date of this incident was subsequent to the Performance Plan that had been completed and signed the week before. I also note that, although the offence was committed in early September, the matter was investigated by the Professional Standards Bureau, and the assault charge was not laid until December 16, 2015.

Amount Stolen

[95] As stated by Mr. McDermott, $10,000 is a large sum of money. In fact, it was $11,500.

[96] Further, there is no evidence that Mr. Duke suffered from any addictions, or that he was motivated by anything other than greed.

Dishonesty with Dr. Booth as to the Location of the Drugs Seized

[97] Dr. Booth's report clearly indicates that Mr. Duke advised him that he tried marijuana once at the age of 13, and that he had never tried any other substances. In addition, Mr. Duke denied consumption of any of the drugs found at his residence.

[98] This of course leaves one wondering why he had all of the drugs that were seized from many locations in his home and his locker, if his intention was not to consume them.

[99] I have been careful to not address Mr. Duke's explanations to Dr. Booth for why he committed the offences, as Mr. Wallace quite fairly acknowledged he was not seeking to call evidence on those issues. As such, I shall disregard any reference to "why" he committed the offences. However, I am concerned about his recounting to Dr. Booth where the drugs were located.

[100] The following passage appears at page 20 of Dr. Booth's report, under the heading of "Accused's Account of Behaviour":

Regarding the drug possession charges, Mr. Duke reported that he had the drugs in his garage. He explained that when he was working in the drug unit, there were banker boxes with evidence. This would be maintained and only submitted if the case went to trial. He had some samples in a box in his garage, noting that he "simply forgot them there." He denied selling drugs or using drugs.

[101] Leaving aside the falsity of the assertion that it has ever been permissible for an officer to keep potential exhibits, drugs or otherwise, in one's personal garage, and only submit these if the matter proceeds to trial, the concern for me is that Mr. Duke was clearly dishonest with Dr. Booth as to where the drugs were located.

[102] In fact, none of the drugs were located in his garage. Rather, the drugs that resulted in guilty pleas were located in his master bedroom. Further, the other drugs seized, that did not result in pleas but were acknowledged as correct, were located in his basement, his duty bag and his locker.

Potential Impact Upon Future Prosecution

[103] It is important to note that, at the time Mr. Duke committed this offence, he did not know that the person he had stopped was an undercover police officer. Had this undercover officer, in fact, been a true accused person, who was legitimately charged with possession of proceeds of crime, a significant amount of evidence was now missing. This could have jeopardized the prosecution.

[104] There was no evidence put before me to suggest that Mr. Duke's actions on October 30, 2015, jeopardized any actual investigations or prosecutions.

Attempt to Conceal the Proceeds of Crime

[105] Although Mr. Duke carelessly discarded the envelope that had contained the $1500 taken from the visor of the car, and somehow managed to dispose of $660 (an amount which remains outstanding), he took great care to attempt to hide the stolen $10,000 in the rafters of his basement.

[106] While the offence was opportunistic, the action in hiding the money in the rafters, was clearly deliberate.

Nature and Quantity of the Drugs Seized in Residence

[107] Little needs to be said about the fact that methamphetamine and oxycodone, both of which are Schedule 1 substances, are highly addictive and life-threatening to those who use them.

Drugs Located in Duty Bag of Mr. Duke's Locker

[108] Not only did Mr. Duke possess Schedule 1 drugs in his home, he had these in his duty bag. This duty bag was located in his locker. This locker was, of course, located in the Ontario Provincial Police detachment. The public's confidence in Mr. Duke's abilities as a police officer is even further eroded when they consider that he had has access to cocaine and marijuana in his duty bag.

Breach of Trust

[109] The most egregious of the factors that I must consider to be aggravating is, of course, that Mr. Duke committed these offences while in the execution of his duties.

[110] Hill, J. succinctly describes the position of trust held by police officers at paragraphs 29-34 of R. v. Cook, supra:

29 Police officers, as officials discharging public duties, occupy a special position of trust in the community: R. v. LeBlanc (2003), 2003 NBCA 75, 180 C.C.C. (3d) 265 (N.B.C.A.) at para. 32; R. v. McClure (1957), 118 C.C.C. 192 (Man. C.A.) at 200; United States v. Rehal, 940 F.2d 1, 5 (1st Cir. 1991). "[A] heavy trust and responsibility is placed in the hands of those holding public office or employ": R. v. Berntson (2000), 2000 SKCA 47, 145 C.C.C. (3d) 1 (Sask. C.A.) at para. 24 (aff'd 2001 SCC 9, [2001] 1 S.C.R. 365, at para. 2). Individuals working in the justice system "owe a duty to the public to uphold the values of that system" (R. v. Feeney et al. (2008), 2008 ONCA 756, 238 C.C.C. (3d) 49 (Ont. C.A.) at para. 5) with the administration of justice "depend[ant] on the fidelity and honesty of the police": R. v. McClure, supra, at 200.

30 Undoubtedly, policing is a challenging line of work as observed by Murray CJ. in Shortt v. The Commissioner of an Garda Síochána & others, [2007] IESC 9 at p. 3:

Exceptional or spectacular successes in combating crime are usually well publicised but on a day to day basis the individual Garda member invariably works unpublicised within all sections of the community but particularly on the margins of society where they have to confront determined criminals willing to use every means at their disposal, including wanton violence, to further their ends. They are the first line of defence against hardened criminals who have not the slightest regard for the interests of the individual citizen be they young or old. On a daily basis, or rather on a nightly basis, they may have to confront, in a whole range of situations from street crime to domestic violence, individuals, drunk or otherwise, who are hostile or offensive towards them. Its members in these difficult situations traditionally exercise their powers with discipline and restraint.

There are also a myriad of situations in which the Garda member must undertake, as a matter of duty, difficult and personally painful tasks whether it be the recovery and handling of a decomposed body from a river or premises, removing a mutilated body of a person or child from a crashed motorcar or informing a parent or spouse of the death of a loved one. They also serve the community in what might be called a more positive role such as by way their programme of support for the victims of crime, the Garda Primary Schools Programme, the Youth Diversion Project which has as its aim the rehabilitation of young offenders, support for neighbourhood watch schemes, to name but some of the forces' direct community projects.

31 "[T]he vast majority of police officers perform their duties carefully and reasonably": Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41 at para. 36 per McLachlin CJ. That said, as in any line of work, the moral compass of an individual police officer may become untrue as he or she elects "to cross to the other side of the road and become a criminal": R. v. Yaghi, [2002] NSWCCA 396 at para. 39.

32 The police, in the execution of their duties, gain access to places and situations which the ordinary person does not experience: United States v. Foreman, 926 F.2d 792, 795 (9th Cir. 1990). In such situations, an officer may be in a position "where he can commit offences without arousing suspicions": R. v. Shaw (1968), 66 W.W.R. 626 (B.C.C.A.) at 628. For example, where a police officer victimizes a drug dealer, "the offender is likely to escape scot-free": R. v. Yaghi, supra, at para. 17. In R. v. LeBlanc, supra, at para. 27, the court stated:

Police officers have opportunities, practically on a daily basis, to cross the line and engage in prohibited conduct. The public trusts them to resist the temptation and relies upon the courts to deal firmly with those who stray.

So too, in R. v. Berntson, supra, at para. 25, the court referred to the statement of then Governor Franklin D. Roosevelt of New York in making his order removing Sheriff Farley from office, that public officers "are so close to the means for private gain that in a sense not all true of private persons" (The Public Papers and Addresses of Franklin D. Roosevelt, at pp. 583-4).

33 While the rule of law is a complex concept with many components, one significant feature is that agents of the state must themselves be subject to and obey the law: Hitzig v. Canada (2003), 177 C.C.C. (3d) 449 (Ont. C.A.) at para. 112.

34 In Ontario, police officers, by law, are required to swear/affirm to "uphold the Constitution of Canada" and to "preserve the peace, prevent offences and discharge ... duties ... faithfully and according to law": Ont. Reg. 268/10, s. 2 to the Police Services Act, R.S.O. 1990, c. P.15, as amended (P.S.A.). That's the very oath sworn by Sheldon Cook in 1991 (Trial Exhibit #71). Pursuant to their oath, and ss. 42 and 45 of the P.S.A., the police "have a duty to investigate [crime] in accordance with the law" (Hill v. Hamilton Wentworth, supra, at para. 41 per McLachlin CJ.) - indeed, "[p]olice officers are the main actors who have been entrusted to fulfil this important function": Hill v. Hamilton Wentworth, supra, at para. 116 per Charron J. (in dissent in the result). It goes without saying that, in investigating crime, police officers are "expected to serve the public" (R. v. Keyte, [1998] 2 Cr. App. R. (S.) 165 (C.A.) at 166) and not to abuse that trust by violating the very laws they are obligated to enforce: United States v. Foreman, supra, at 796. Accordingly, "police work demands that society (including the courts) impose and enforce high standards on police conduct": Hill v. Hamilton Wentworth, supra, at para. 71.

[111] Mr. Duke swore an oath when he joined the Ontario Provincial Police 23 years ago. His actions of October 30, 2015 show a complete disregard for that oath.

[112] There is one last aggravating factor that I would be remiss in not discussing.

Potential Impact on the Ontario Provincial Police and on the Administration of Justice

[113] The actions of Mr. Duke are his actions alone. There was no evidence before me that on October 30, 2015 Mr. Duke was acting in concert with, or at the direction of, any other person.

[114] There will, however, be those who speculate on the honesty and integrity of other police officers, and of the judicial system itself, as a result of Mr. Duke's actions.

[115] The potential impact upon Mr. Duke's colleagues and the administration of justice is akin to that which was described at paragraph 40 of the Cook decision, wherein Hill, J. stated:

40 Over and above the stain upon the administration of justice arising from criminality by a police officer breaching the trust imposed upon him or her, such conduct inevitably, but unfairly, results in diminishment of the reputation of his or her police force and fellow police officers: see R. v. Moyse (1988), 38 A Crim R 169 (SASC) at 176 (crimes brought "shame on ... the Force in which you were a highly trusted and respected member") and the observations of Murray CJ. in Shortt v. The Commissioner of an Garda Síochána & others, supra, at pp. 2-4 which may be taken as apposite to the PRPS:

Unfortunately, the conduct of the Garda officers before, during and following the trial and associated circumstances cannot but reflect negatively on the Garda Síochána.

However, it must also be borne in mind, that there are currently upwards of 12,000 members of An Garda Síochána serving in the community. The Garda Síochána, having as its role the maintenance of law and order, the enforcement of the law and protecting the security of the State, is an institution which, since its foundation in 1922, has been an essential part of our democratic fabric.

As I have already mentioned much of the day to day dedication of members of the Garda force in difficult circumstances goes unpublicised and perhaps unrecognised. Nonetheless it is because of its consistent tradition of dedicated public service that the Garda Síochána has obtained and retains to this day the general support and respect of the community at large.

Unfortunately, as experience in this country and other countries demonstrate, departures, sometimes the gravest of deviations, from normal standards of conduct and professionalism occur in police forces.

The conduct of those two members probably constitutes the gravest dereliction of duty and abuse of power that one could ever fearfully contemplate would be engaged in by servants of the State and officers of law and order. Partly, but by no means solely, because they have sullied the reputation of the Garda Síochána the gravest view must be taken of their conduct.

This affair is regrettably a stain of the darkest dye on the otherwise generally fine tradition of the institution of An Garda Síochána. The facts and circumstances are a pot of iniquity which may be seen by some as reflecting on the Garda Síochána as a whole much to the potential demoralisation of upstanding members of the force which constitute the vast majority. Such a broad conclusion would be an unwarranted and disproportionate response to this affair however badly it may be viewed. The force is replete with dedicated and highly professional members. There is no suggestion in these proceedings that the traditional respect for the authority of An Garda Síochána generally, so important to the community at large, should be set aside.

[116] I am confident that the members of the public who apprise themselves of the details of Mr. Duke's offending, will be able distinguish between Mr. Duke's significant breach of trust and the conscientious, professional and dedicated police officers who continue to act on the public's behalf, and who continue to deserve respect and the trust that has been placed in them.

CONCLUSION

[117] I have carefully considered the facts of the case before me, the principles, purpose and objectives of sentencing, and the ranges of law as set out in the case law. I have determined that the appropriate sentence to impose in this case is that of 21 months in custody.

[118] Please stand Mr. Duke.

[119] I impose the following sentences in this matter:

• Count 1 – theft over $5000 – 17 months in custody;
• Count 2 – breach of trust by a public officer – 17 months in custody, concurrent to Count 1;
• Count 3 – careless storage of a firearm – 6 months in custody, concurrent to Count 1;
• Count 4 – careless storage of ammunition – 6 months in custody, concurrent to Count 1;
• Count 5 – possession of methamphetamine – 9 months in custody, concurrent to Count 1;
• Count 6 – possession of oxycodone – 4 months in custody, consecutive to Count 1;

[120] But for the principle of totality, I would have imposed a longer sentence on count 6. To reflect the gravity of the Controlled Drugs and Substances Act offences I have imposed a consecutive sentence for that one count.

[121] I recommend that Mr. Duke be permitted to serve his sentence at the St. Lawrence Valley Correctional and Treatment Centre.

[122] I make an order for Mr. Duke to provide a sample of his DNA, pursuant to s. 487.051 of the Criminal Code.

[123] Pursuant to s. 109 of the Criminal Code, I am prohibiting Mr. Duke from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, for a period of ten years.

[124] Mr. Duke is ordered to pay $1200 in victim fine surcharges and I grant him two years to pay.

Released: September 27, 2018

Signed: Justice Kimberly E.M. Moore