R. v. Feeney, 2008 ONCA 756

CITATION: R. v. Feeney, 2008 ONCA 756

DATE: 20081110

DOCKET: C47806

COURT OF APPEAL FOR ONTARIO

Sharpe, Lang and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

John Feeney, Thomas Findlay, Kamaljeet Kang & Jeffrey Martin

Respondents

Milan Rupic, for appellant

Gary R. Clewley, for the respondents

Heard and released orally: November 5, 2008

On appeal from the sentences imposed by Justice T.M. Dunnet of the Superior Court of Justice dated June 4, 2007 and reported at [2007] O.J. No. 2924.

By the Court:

[1] The Crown seeks leave to appeal and, if leave be granted, appeals the sentences imposed on the four respondents, who were all court officers with the Toronto Police Service. The respondents were convicted of assaulting an individual being held as a prisoner in the holding cells of Old City Hall courthouse in Toronto. They were sentenced to conditional sentences ranging between 45 and 90 days plus 6 months probation and 50 hours of community service.

[2] The respondents unleashed a vicious assault on a prisoner who had spilled juice on one of their fellow court officers. Feeney, the supervisor, asked for "volunteers" and held a short meeting. He then led a group of court officers, including the other three respondents, to the victim's cell. The victim was handcuffed from behind and shackled. When he refused to clean up the juice he was knocked to the ground and beaten.

[3] In the ensuing assault, the victim was kicked in the face, given flying kicks, and punched in the back and face. In addition, the victim was grabbed by his bound hands and legs and his body was used as a mop to wipe the juice from the floor. The trial judge found that the respondents attempted to cover up their involvement and that they falsified reports.

[4] While we recognize the well-established principle that an appellate court owes deference to the sentencing judge, we are persuaded that the sentence imposed in this case was demonstrably unfit and that the trial judge erred by failing to give sufficient weight to the principles of general deterrence and denunciation.

[5] The conduct of the respondents must be considered in the light of the fact that they are officers in the justice system. They owe a duty to the public to uphold the values of that system. The respondents held a position of authority conferred upon them by virtue of their important public duties, and they owed the victim, a prisoner entrusted in their custody, a duty to take care for his safety.

[6] When officers entrusted with such duties commit a collective, premeditated, vicious and humiliating assault upon a defenceless prisoner, and then try to cover up their actions, a sentence emphasizing the principles of deterrence and denunciation is called for. We agree with the appellant that the situation was akin to a breach of trust which normally calls for a custodial term. Moreover, this was a case where the values of our society and its justice system must be vindicated and reflected by a sentence that clearly tells those vested with power and authority that attacks by court officers on vulnerable prisoners will not be tolerated and that when they occur, serious sanctions will be imposed.

[7] In similar circumstances, the British Columbia Court of Appeal in R. v. Bottrell (No. 2) (1981), 62 C.C.C. (2d) 45, at p. 47:

The police are in a special position of power over prisoners…. The prisoner cannot run from a policeman without fear of a charge of escaping lawful custody. There is really not much that a prisoner can do to protect himself against assaults by police officers. The justice system puts the police officer in that position of power and, in my view, it is the justice system that must protect the prisoner.

[8] The court went on to cite the following passage from the decision of the Appeal Division of the Nova Scotia Supreme Court in R. v. Cusack (1978), 41 C.C.C. (2d) 289, at p. 293:

In my opinion, the paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who are given special authority by our law to deal with individual members of society, and to deter such persons from acting in breach of their trust. All citizens must have confidence that police officers who are invested with substantial rights of interference with individual liberties exercise these rights with a scrupulous propriety, and that any failure to so act will result not only in dismissal from the position of trust but also in the imposition of substantial punishment.

The commission of offences by police officers has been considered on numerous occasions by the Courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime, because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration.

[9] Likewise, in R. v. Nixon (1991), 63 C.C.C. (3d) 428, the British Columbia Court of Appeal stated at p. 432:

The gratuitous use of force on a defenceless prisoner in the confines of the police station lock-up is as reprehensible a crime in a free and democratic society as one can imagine, and one in which the appellant became deeply implicated by culpable inaction when he failed in his duty to the prisoner in his charge.

[10] In our view, the conditional sentences imposed manifestly failed to reflect those principles.

[11] Bearing in mind that the respondents have served all or virtually all of their conditional sentences, we impose the following additional terms to be served in custody: The respondent Feeney 60 days; the respondent Findlay 60 days; the respondent Kang 30 days; and the respondent Martin 45 days.

"Robert J. Sharpe J.A."

"S.E. Lang J.A."

"G. Epstein J.A."

RELEASED: November 10, 2008