W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.
CITATION: R. v. Byrne, 2009 ONCA 134
DATE: 20090212
DOCKET: C48762
COURT OF APPEAL FOR ONTARIO
Rosenberg, Feldman and Cronk JJ.A.
BETWEEN:
Her Majesty the Queen
Appellant
and
Patrick Byrne
Respondent
Nadia E. Thomas, for the appellant
Alan D. Gold and Vanessa Arsenault, for the respondent
Heard: January 20, 2009
On appeal from the decision of Justice Julie A. Thorburn of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated April 8, 2008 and reported at 2008 ONSC 14944, varying the sentence imposed by Justice Gregory Regis of the Ontario Court of Justice dated May 18, 2006.
Feldman J.A.:
[1] The issue in this case is the proper range of sentence for a court officer who is convicted of assaulting a young person in his custody.
Facts
[2] The trial in this case lasted 11 days, stretching over a period of more than one year. The respondent testified, as did other court officers, including the respondent’s partner on the day in question. The trial judge disbelieved the respondent and his partner as well as a number of the other defence witnesses. He accepted the facts as outlined below.
[3] The respondent was a court officer with the Toronto Police Service. On March 4, 2002, he and his partner were transporting four young women in a van from the Vanier Correctional Center in Brampton to attend court at the 311 Jarvis Street courthouse in Toronto. Because one of the girls was experiencing a medical problem, the four girls began banging on the inside of the van to get the two officers’ attention. The respondent first ignored the banging, and then went to the back of the van to tell the girls to “shut up”. He became angry about their behaviour, and as punishment, he deliberately drove the van back and forth, stopping it suddenly. This caused the girls to fall on the floor and suffer minor injuries.
[4] At 311 Jarvis Street, the respondent continued to be upset by the girls’ ongoing complaints and their apparent refusal to follow his orders. However, the trial judge found that they were not resisting but were trying to complain about the respondent’s behaviour. While they were handcuffed together, he pushed them down the stairs and deliberately hit Ms. H’s head into a doorway causing a bump on her head. The trial judge found that this was not a restraining action. The respondent’s anger toward Ms. H continued in the cell area where he choked her because she continued to talk back to him. She also spit at him twice, the second time because he was choking her.
[5] The trial judge acquitted the appellant of assault on one of the girls and convicted him of assault on Ms. H.
[6] At the sentencing hearing, the Crown sought a sentence of 90 days’ imprisonment, followed by a period of probation. The defence sought a conditional discharge or a suspended sentence, but requested that if a term of imprisonment were to be imposed, then the sentence should be a conditional sentence or served intermittently.
[7] The Crown relied on aggravating factors including breach of trust, the victim’s injuries, and the fact that the respondent and his partner colluded after the events to falsify their report of the incident. The defence called many witnesses to attest to the respondent’s good character, his exemplary record, and the positive changes in his life. For the purpose of the presentence report (of which there were two), the respondent was seen by a psychologist who reported several problems including anger. Following the first report, the respondent attended an anger management program and was noted in the second report to be “doing fine.”
[8] The victim impact statement indicated ongoing fear of officers as a result of the incident.
[9] The trial judge concluded that while in a position of trust and authority, the respondent conducted a continuing assault, starting with his driving and later at 311 Jarvis Street. He then caused charges to be laid against the victim and colluded with his partner of the day, a trainee officer, to write a false report. He also tried to impede the police investigation that followed. As a result, a period of custody was required; in order to properly address the sentencing objectives of deterrence and denunciation, a conditional sentence was not appropriate. However, in accordance with the defence request, the respondent was allowed to serve the 90-day sentence on weekends. A period of two years’ probation was also imposed.
[10] The respondent appealed both conviction and sentence to the Summary Conviction Appeal Court. The conviction appeal was dismissed and the sentence appeal allowed.
[11] The summary conviction appeal judge found that the sentence imposed was outside the acceptable range because the respondent was a first-time offender with positive character evidence and presentence report, had undergone counselling, had an exemplary record, caused no serious injury to the victim, and had suffered serious consequences from his behaviour by losing his job. She also found that although his reactions were unjustified, they may have been influenced by the victim’s behaviour.
[12] The summary conviction appeal judge substituted for the sentence imposed by the trial judge, a conditional discharge together with two years’ probation, which she stated would serve the purposes of denunciation and deterrence.
[13] The Crown seeks leave to appeal the sentence. In my view, the summary conviction appeal judge made an error in law when she found that the sentence imposed by the trial judge was outside the appropriate range. As a result, this case falls into the second category of cases identified in R. v. R.R. (2008), 2008 ONCA 497, 90 O.R. (3d) 641 (C.A.) and it is therefore an appropriate case for this court to grant leave to appeal.
[14] Counsel for the respondent has put before the court a number of Ontario trial judgments where court officers who assaulted prisoners were given discharges or conditional sentences.[^1] He submits that the case law is consistent that a custodial sentence is outside the range for this type of offence and this type of offender.
[15] I do not propose to review or to attempt to distinguish these cases. To the extent that some trial judges may have taken the approach that a custodial sentence is not appropriate where a court officer assaults a prisoner, that approach is erroneous. A recent decision of this court from November 2008 reflects the proper approach in such cases.
[16] In R. v. Feeney, [2008] O.J. No. 4464 (C.A.) four court officers with the Toronto Police Service were convicted of assaulting a prisoner in the holding cells of the Old City Hall courthouse. The assault was a vicious revenge attack by four officers on a prisoner who had spilled juice on another officer. The four defendants also attempted to cover up their involvement, which included falsifying reports.
[17] The trial judge imposed conditional sentences ranging between 45 and 90 days, plus six months probation and 50 hours of community service. This court found that the sentences were demonstrably unfit and did not give sufficient weight to the principles of deterrence and denunciation. The court emphasized the fact that as officers in the justice system, the defendants owed a duty to the public. Further, as persons in authority, entrusted with the care of persons in their custody, they owed a duty to the victim to take care for his safety.
[18] The court stated at para. 6 of the judgment:
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.
[19] The court also referred to three appellate decisions from British Columbia and Nova Scotia: R. v. Bottrell (No.2) (1981), 1981 BCCA 352, 62 C.C.C. (2d) 45 (B.C.C.A.); R. v. Nixon (1991), 1991 BCCA 905, 63 C.C.C. (3d) 428 (B.C.C.A.); and R. v. Cusack (1978), 1978 NSCA 2283, 41 C.C.C. (2d) 289 (N.S.S.C. (A.D.)). In those decisions, the appellate courts confirmed that cases involving offences by police officers on prisoners in their custody require the courts to impose sentences that adequately protect society and the victims of police who abuse their power and their position of trust.
[20] In determining the appropriate sentence in Feeney, this court observed that by the time the appeal was heard, the defendants had served all or virtually all of their conditional sentences. Bearing that in mind, the court imposed further terms of custody ranging from 30 days to 60 days.
[21] In this case, the circumstances are exacerbated by the fact that the victim was a teenaged girl. Police and court officers, already in a position of trust with prisoners, have an enhanced duty to protect children in their custody.
[22] Crown counsel also referred the court to the case of R. v. Hudd (May 8, 1998), London, 20/97 (Ont. Ct. Gen. Div.) (Reasons for Sentence); (1999), 1999 ONCA 1734, 126 O.A.C. 350 (C.A.). In Hudd, the defendant bailiff was convicted of assaulting a young offender who was being transported with others to a detention centre, following a riot at a youth centre. The defendant removed one of the young men from the van when they stopped at a gas bar, then kicked him while he was bound by flexcuffs and shackles. Determining what occurred in that case was exacerbated, as it was in this case, by collusion among court officers. There was also collusion among the prisoners.
[23] The trial judge imposed a custodial sentence of 60 days to be served on weekends. He concluded that because of the breach of trust, a conditional sentence would not serve the applicable sentencing principles. This court found the sentence to be fit.
[24] In my view, the summary conviction appeal judge erred by interfering with the sentence imposed by the trial judge. In sentencing matters, significant deference is owed to trial judges. In this case, the sentence he imposed was well within the appropriate range. Furthermore, the sentence that was substituted by the summary conviction appeal judge was outside the range and did not adequately reflect the principles of deterrence and denunciation that are necessary for this type of abuse of authority and breach of trust. I note that as in Feeney, not only was there a prolonged assault on a defenceless victim, the respondent then attempted to subvert justice by falsifying the evidence and influencing another officer to do the same.
[25] I also agree with the Crown that the summary conviction appeal judge erred in giving any weight on sentence to whether the respondent was reacting to the behaviour of the victim, presumably referring in part to the spitting. In Hudd, McGarry J. observed that although the accused in that case was in a very stressful situation, he was trained as a bailiff to deal with that type of situation and “would fully understand that he was in a position of trust and that kicking an inmate would be a very serious criminal violation.”
Conclusion
[26] For these reasons, I would grant leave to appeal, allow the appeal, set aside the decision of the summary conviction appeal court on sentence and restore the sentence imposed by the trial judge.
Signed: “K. Feldman J.A.”
“I agree M. Rosenberg J.A.”
“I agree E. A. Cronk J.A.”
RELEASED: “MR” February 12, 2009
APPENDIX A
R. v. Hudd (May 8, 1998), London, 20/97 (Ont. Ct. Gen. Div.) (Reasons for Sentence).
Reasons for Sentence
Friday, May 8, 1998
UPON
RESUMING
THE COURT: First of all, I'd like to thank counsel for their very thorough submissions with respect to sentencing. They canvassed every possible issue that I think needed developing, and I am now prepared to sentence the accused, but I'd like to ask the accused if he has anything he'd like to say before I do.
RONALD JAMES HUDD: No, Your Honour.
REASONS FOR SENTENCE
McGARRY, J.: (orally)
C 38 (01/90)
In this matter, I found the accused the accused guilty of a level one assault, and as I indicated in my reasons I realize that he is a senior bailiff with the Correctional Services in Ontario, and on the date in question, had the responsibility of transporting young offenders who had rioted at the Bluewater facility in Goderich.
In my reasons, I found that the complainant was removed from the van and that he was pulled out by the shackles and then he was kicked by the accused, and I think it is fair to say another person as well. At the
3
Reasons for Sentence
time of being kicked, he was bound by flexcuffs and shackled, in other words, he was
basically defenceless lying on the ground.
Prior to going to Bluewater, the accused had worked a shift in Toronto and had been designated to go to Goderich, some two hours plus away, so he had worked a full shift and then entered a situation which was extremely tense, and I am sure very stressful. However, the accused is an employee who has had many years of correctional service, and is trained to deal with similar situations. He probably more than anyone else would fully understand that he was in a position of trust and that kicking an inmate would be a very serious criminal violation.
In listening to the evidence, it became clear to me that there is historically a code of silence carried on by the correction people and also the inmates who feel it's not in
their best interests at times to complain, and this, in my view, often protects prison officials from further investigation.
I seldom make comments about police work, but in this case, I think it was the excellent persistence of the police in pursuing this
matter that brought it in due course to court.
In reviewing the issues surrounding sentencing, it is acknowledged by counsel that a fine is not appropriate when dealing with a
Reasons for Sentence
person who is in a custodial position, as is the accused, and consequently, a lower reformatory range is appropriate. I am advised that there were two other officers who were at the local detention facility, and that they were charged and plead guilty to a number of counts involving assaulting young offenders and that their sentence, based on a joint submission, was 90 days intermittent.
The case that I am currently dealing with is not the same factually, in that in this case the accused did not plead guilty; however, his statement to the police virtually acknowledged his involvement and acknowledged the allegations. However, at the same time in my view, the violence was less than that involving the other two guards, and clearly it lasted for a shorter period of time. To use the expression, I think the accused in this case "lost it" and it interrupted an otherwise long and blameless career, and he has also been disciplined by his superiors and is going to pay a very significant financial penalty.
So, at this point in the sentencing, there are really two considerations for me to deal with - one is the length of sentence and whether or not it should be served in the community pursuant to S. 742.1 of the Criminal Code.
The accused, it is acknowledged, is in a
Reasons for Sentence
unique position of public trust, and in my mind, his violation is clear - kicking a young
offender who was unable to defend himself is in fact a disgraceful act, no matter what abusive language may have been used by that offender previously.
In looking at specific deterrence, I am satisfied that this accused needs no deterrence insofar as a jail sentence is concerned. A very strong issue for this Court is, I believe, the general deterrence related to law enforcement and any of those who are so involved who might be of like mind to take advantage of inmates. I am sure the thought of being incarcerated has a very high degree of deterrence. The issue of whether the sentence should be served in the community must be considered as well under S.742.1 and in the WISMAYER case, the Court sets out the
criteria. If the offence is not punishable by a minimum term of imprisonment, the Court must impose a sentence of less than two years and the Court must be satisfied that serving the sentence in the community would not endanger the safety of the community. Now, the only issue here is whether or not the third aspect might apply and I don't think it does.
The decision then goes on to say if those prerequisites are met, the Court may for the purposes of supervising the offender's
5
Reasons for Sentence
behaviour in the community order that the offender serve the sentence in the community subject to the conditions specified in the conditional sentencing order.
Subsequent to that decision, we have some amendments to the Code, and we also have further cases which go on to establish that there are other criteria, in fact the basic criteria for sentencing must also be considered.
In my view, the overriding principle in this case is the breach of trust and the degree. In the case of R. v. NIXON, the Court stated,
“••• the gratuitous use of force on the defenceless prisoner in the confines of police station lock-up is as reprehensible a crime in a free and democratic society as one can imagine ...” I share those views, and in my view, in light of the actions of the accused, the only appropriate sentence is one of a jail sentence, which will be served in custody, and taking into consideration the sentence imposed on the two other prison officials, involved in similar actions, I feel that this sentence should be less than that imposed and I will impose a sentence of 60 days in custody.
I am prepared to hear submissions with respect to whether it should be served on an
Reasons for Sentence
intermittent basis or whether the accused wishes to serve it .
.. . Submissions by Mr. Forsyth and Mr. Corelli
THE COURT: So, it will be from the first day today and then from Friday at 6:00 p.m. to Monday at 6:00 a.m.?
MR. FORSYTH: Yes, so do I understand today will be the booking day, as they call it? THE COURT: Yes.
MR. FORSYTH: And then commencing again next Friday night?
THE COURT: Well, we can do that.
MR. FORSYTH: That would be preferrable, if YOU could. Thank yoU, Your Honour.
THE COURT: Now, I noted in Judge Baker's decision that there was a concern with regard to the security of the accused in that they were, I believe, served their time at Stratford. Is there a similar concern here?
MR. FORSYTH: We hadn't discussed that, Your Honour. I know there are certain reasons in the other case.
THE COURT: The other point is that the accused is from Toronto, and it may be that he would like to serve his time at an institution in Toronto rather than here.
MR. FORSYTH: Milton actually. He's from Milton.
RONALD JAMES HUDD: I don't want to serve there. That's where I work.
Reasons for Sentence
MR. FORSYTH: No, I know. He lives in Milton and works in Maplehurst in Milton, but if there was a desire to have the venue changed, he would have to apply internally, I think anyway. And you're saying you might make a recommendation.
THE COURT: I could do that. It's up to you.
MR. FORSYTH: Alright, if Your Honour doesn't mind making a recommendation to be considered by the correctional authorities at Waterloo. Waterloo Detention Centre for a sentence of this duration, as opposed to a correctional centre, would be the appropriate. I appreciate it's only a recommendation. The rest would have to be done internally, and I appreciate that.
THE COURT: So I will just put the institution recommended is the Waterloo Detention Centre?
MR. FORSYTH: Yes, Sir.
THE COURT: Alright, and for the term of the time that you're serving, you will be required to be on probation for that period of time and
the only term will be that you not consume any alcohol or any non-prescriptive drugs 12 hours prior to admission.
Surcharge is waived. " . COURT ADJOURNED
20
25
30
088 (01/90)
Reasons for Sentence
THIS IS TO CERTIFY THAT the foregoing is a true and accurate transcription of recordings made by sound recording apparatus, to the best of my skill and ability.
Mrs. C. E. McCutcheon Court Reporter
(a)
PHOTOSTATIC COPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND HAVE NOT BEEN PAID FOR UNLESS THEY BEAR THE ORIGINAL SIGNATURE OF CATHERINE McCUTCHEON, AND ACCORDINGLY ARE IN DIRECT VIOLATION OF ONTARIO REGULATIONS 587/91, COURTS OF JUSTICE ACT, January 1, 1990.
.'01 ., ::: .••..
[^1] This list includes the trial decision in R. v. Feeney, [2008] O.J. No. 4464 (C.A.). Neither counsel had the endorsement of this court from November 2008, which was provided following the oral hearing.