Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 02 03 COURT FILE No.: Windsor 21-LE8270

BETWEEN:

HIS MAJESTY THE KING

— AND —

GHISLAIN DESJARDINS

Before: Justice S. G. Pratt

Heard on: 27 September 2022, 13 January 2023 Reasons for Judgment released on: 3 February 2023

Counsel: Jenna Wright, Counsel for the Crown Kenneth Marley, Counsel for the Defendant

Reasons for Sentence

Pratt J.:

[1] On 27 September 2022, Ghislain Desjardins, hereinafter the Offender, pleaded guilty to two offences: Dangerous Driving and Assaulting a Peace Officer with a Weapon. The offences arise from conduct taken against members of the Leamington detachment of the Ontario Provincial Police. The Crown argues for a six-month jail sentence. Relying on the rehabilitative efforts the Offender has made since his arrest, defence counsel seeks a conditional sentence in the range of 8-9 months. These are my reasons for sentence.

Facts

[2] Late on the night of 6 June 2021, Sergeant Ian Stibbard of the Leamington OPP parked his police vehicle outside the detachment on Clark Street. He parked in a designated police parking place and exited his marked cruiser. He noticed a black Cadillac motor vehicle facing east (i.e., towards him) with the engine running. This vehicle drove directly at him at a high rate of speed. Sgt. Stibbard was forced to jump onto his vehicle to avoid being struck. I am told the Cadillac missed the police cruiser by a matter of inches.

[3] The Cadillac sped away. Sgt. Stibbard place a radio call to alert all Essex County officers of what had happened. A message was also sent out on the CPIC system for officer safety.

[4] At approximately 12:30 am, PC Vanmackleburg found the vehicle. It was again on Clark Street in front of the OPP detachment. At 12:56 am PC Robinson was parked on Clark Street waiting to see if the vehicle would return again. It did. The driver of the Cadillac parked in a police parking spot and turned off the vehicle’s lights. PC Robinson told other officers what he’d seen and he was quickly joined by PC Vanmackleburg and another officer, PC Glaves. When they each entered their cruisers, the Cadillac began moving again. The officers pursued it, catching up at Elliott and Clark streets. At a red light, PC Vanmackleburg pulled in front of it while PC Glaves pulled up close behind it. PC Robinson pulled his vehicle to the driver’s side of the Cadillac to prevent the driver from exiting.

[5] The driver, acknowledged to be the Offender, did not look at officers. He kept his vehicle in gear and looked to PC Glaves like he was formulating a plan. When told to exit the vehicle, the Offender replied, “Fuck you, pigs”. PC Robinson reversed his cruiser so they could open the driver’s door. The Offender refused to exit and pulled the door shut. PC Vanmackleburg opened the passenger side door, while the others re-opened the driver’s side door. The Offender was ordered to put the vehicle in Park, which he did not. Instead, he began swinging his arm at PC Vanmackleburg and struck him several times in the head with a closed fist. PC Glaves grabbed the Offender to stop the assault. PC Vanmackleburg released the Offender’s seat belt and the Offender was pulled from the vehicle. He continued to resist officers, ultimately leading to officers deploying a taser to gain compliance. After a protracted struggle, the Offender was placed in handcuffs and taken into custody. He had abrasions on his face but refused medical care. On arrest he stated, “I watch enough video in my life with police abusing their powers”, and words to the effect of I don’t care for the law, I don’t believe in the law, I take care of myself.

[6] PC Vanmackleburg felt nauseous after being struck in the head. There was the possibility he suffered a concussion but no formal diagnosis was made.

Positions of the Parties

[7] Counsel for the Offender seeks a conditional sentence of 8-9 months. He cites the progress the Offender has made since that night. I will address that progress later in these reasons.

[8] The Crown seeks a six-month jail sentence, citing the need to emphasize denunciation and deterrence. It further seeks a term of probation, a driving prohibition, a DNA order, and a weapons prohibition under s. 110 of the Criminal Code.

The Pre-Sentence Report

[9] I have had the benefit of a Pre-Sentence Report prepared by Probation Officer Vanessa Mineau. It provides a detailed history of the Offender and is very helpful.

[10] The report is largely positive. The Offender enjoys some family support and currently lives with his son. He maintains contact with one brother and with his mother.

[11] The Offender worked in the construction industry until he was struck by a vehicle and injured. He recovered from those injuries and returned to work for four years before leaving and collecting Ontario Disability Support Program benefits. He remained on those benefits until age 65, when he started collecting Old Age Security.

[12] He grew up seeing his father abuse alcohol. He began drinking at the age of 15. He recognizes that alcohol changes his personality in a negative way. His brother confirmed that the Offender is a different person when he drinks.

[13] At age 59, the Offender stopped drinking. He maintained that sobriety until the night of the offences. I am told he made a batch of wine in his residence and drank excessively. He has apparently not consumed alcohol since that night, now 20 months ago.

[14] The Offender was in a 44-year common law relationship with his partner until her death in 2020. He described his partner as his main support system, and said her passing led to feelings of depression, loneliness, and isolation. He is also on prescribed medications for various health conditions.

[15] The Offender currently resides with his son, who is also his surety. His son said they have a positive relationship, and that alcohol is no longer an issue. Despite this optimism, Ms. Mineau stated, “His use of alcohol impacts his criminal behaviour as his pattern of criminality ceased during his period of sobriety. Alcohol appeared to be an aggravating factor with regards to the index offence and is an area that requires further exploration.” I would agree.

[16] Finally, while the Offender says he has abstained from illicit drug use since 1989, I note he was convicted in 2012 of two counts of possessing a schedule I substance for the purpose of trafficking. This would belie his claim that drugs are a distant memory for him.

The Principles of Sentencing

[17] Section 718 of the Criminal Code sets out the principles that guide judges in fashioning appropriate sentences. Denunciation, deterrence, rehabilitation, and encouraging a sense of responsibility in offenders are all important objectives of the sentencing process.

[18] Section 718.02 requires courts to give primary importance to denunciation and deterrence when an offender is convicted of an offence under s. 270.01. Further, s. 270.03 states that a sentence for an offence under that section shall be served consecutively to any other punishment imposed for an offence arising from the same series of events. In the present case the Offender has been found guilty of two offences: assaulting a peace officer with a weapon and dangerous driving. Parliament has decreed that the sentences for each offence must be served consecutively.

[19] Fundamentally, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Analysis

[20] These are very serious offences. Any offence of violence must be taken seriously by the courts, but Parliament has recognized the need to treat assaults on law enforcement officers as particularly heinous. Justice Doherty, speaking for the Court of Appeal for Ontario in R. v. McArthur, [2004] O.J. No. 721 said the following at paragraph 49:

As indicated above, the maintenance of a just, peaceful and safe society is the fundamental purpose of sentencing. Police officers play a unique and crucial role in promoting and preserving a just, peaceful and safe society. We rely on the police to put themselves in harm's way to protect the community from the criminal element. At the same time, we rely on the police to act with restraint in the execution of their duties and to avoid the use of any force, much less deadly force, unless clearly necessary. Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society's determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function: R. v. Forrest (1986), 15 O.A.C. 104 at 107 (C.A.). (Emphasis added)

[21] That passage was cited with approval by Justice MacPherson in the recent case of R. v. Rajkovic 2021 ONCA 11.

[22] The case at bar is different from most assaults of peace officers. Typically, these charges arise when a person resists the arrest of either themselves or someone else. They usually stem from a scuffle that is quickly ended. That is not the case in the offences pleaded to here.

[23] In this case, the Offender lay in wait outside a police detachment. When an officer arrived, readily identifiable as such by his marked cruiser and uniform, the Offender intentionally drove his vehicle directly at him at a high rate of speed. The officer was forced to jump onto the cruiser to avoid being hit. This was not a scuffle over a disputed arrest; this was a planned attack on someone whose only offence was the wearing of a police uniform. It was an attack on all police. As Justice Doherty said, it was an attack on the rule of law and on the safety and well-being of the community as a whole.

[24] And it didn’t end there. When police found the Offender’s vehicle, he was again parked outside the detachment, lights off, waiting. When police came out of the detachment and saw him, he drove away. When they apprehended him, he not only refused to exit his vehicle, but he also punched an officer in the head several times. Even after being pulled from his vehicle and hit with a taser, he continued to resist police. He called the officers pigs, and said he didn’t care about the law.

Aggravating Factors

[25] It is not difficult to find aggravating factors in this case. The driving and the assault were random, violent acts that targeted a police officer. On arrest, the Offender continued to show disregard and contempt for law enforcement. He also has a criminal record that began over fifty years ago. While most of the convictions are very dated, they include assaulting a peace officer, dangerous driving, and resisting arrest.

Mitigating Factors

[26] The most powerful mitigating factor in this case is the Offender’s plea. He is taking responsibility for very serious criminal conduct. While this is by no means an early plea, any acceptance of responsibility inures to the benefit of an offender. In the Pre-Sentence Report, the Offender unequivocally admits his wrongdoing and expresses remorse.

[27] It seems these events have had a salutary effect on the Offender. I am told he has not drunk alcohol since the incident. He has been on bail successfully for a year and a half. He has sold his vehicle and has no plans to replace it. His actions that night were fuelled by homemade wine and watching a number of online videos related to police brutality. The charges represent an aberration in what has otherwise, as counsel put it, been a peaceful existence.

[28] I also note that with the unexpected death of his long-time partner, the Offender lost the main source of support in his life. The loneliness and depression that followed are understandable.

Result

[29] Specific and general deterrence must be given paramount importance in this case. While I cannot sentence this Offender for the actions of others, serious violence against police is increasing. People who swore an oath to protect society are being injured, and sometimes killed, by an ever-more volatile citizenry. Courts must send a powerful message that those who would target law enforcement officers simply because of their position will be dealt with severely.

[30] I cannot, however, ignore the circumstances of this Offender. He is 69 years old and suffers from health conditions that require multiple medications. Aside from this incident he has been out of the criminal courts for a decade. His actions were precipitated by alcohol and anger. He now lives with a family member and has stopped drinking. He is genuinely remorseful and willing to accept whatever sentence is imposed.

[31] I have given this decision much consideration. The offences call out for a period of custody. Were I to impose a term of incarceration, I doubt an appellate court would disagree. But, in these unique circumstances, I have come to the conclusion that conditional sentences of imprisonment can be sufficiently punitive and can meet the goals of deterrence and denunciation.

[32] On each count, the Offender will be sentenced to a six-month conditional sentence of imprisonment. These will be served consecutively pursuant to s. 270.03. Consecutive conditional sentences are permissible so long as the total length remains under two years (see: R. v. Frechette 2001 MBCA 66, [2001] 154 C.C.C. (3d) 191 (Man. C.A.)).

[33] On completion of the conditional sentences, the Offender will be placed on probation for two years. That probation will attach to count 3 only.

[34] Further, there will be an order prohibiting the Offender from operating a motor vehicle on any road, street, highway, or other public place for a period of one year.

[35] Count 3 is a primary DNA offence, so there will be an order that the Offender provide a sample of his DNA for inclusion in the national DNA databank to the Ontario Provincial Police on or before 31 March 2023.

[36] There will be a weapons prohibition under s. 110 of the Criminal Code for five years.

[37] Finally, there will be a victim surcharge of $100 payable on count 3 only. I will grant the Offender four months to pay that amount. The victim surcharge on count 1 is waived.

[38] I will hear from counsel as to appropriate conditional sentence and probation conditions.

Released: 3 February 2023 Signed: Justice S. G. Pratt