Court Information

Court File No.: Toronto Region, Metro North Court Date: 2012-09-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Tracey Smith

Before: Justice Leslie Pringle

Heard on: August 29, 2012

Reasons for Judgment released on: September 6, 2012

Counsel:

• Mr. J. Callaghan for the Crown
• Mr. L. Kinahan for the accused Tracey Smith

Judgment

PRINGLE J.:

[1] An assault by a police officer on a defenceless prisoner in shackles is an assault on the integrity of the criminal justice system. It shakes the faith of the public in the police, it brings dishonour to other police officers, and it cries out for a response by the judicial system. The difficult question is, what is the appropriate response?

[2] The facts here are not in dispute. On July 10, 2010, Anwar Kanani was arrested by security staff at the Woodbine Casino in Toronto and lodged in an OPP cell. He was intoxicated and belligerent. At some point before Mr. Kanani was placed in the cell, Detective Constable Smith tried to speak to Mr. Kanani and he lashed out and tried to kick her.

[3] The cell where Mr. Kanani was lodged was monitored and constantly recorded by video cameras. The cameras are video recorders only – there is no sound. At 5:37 am, the video shows that Mr. Kanani was extremely agitated and began to repeatedly kick the door to the OPP office. At 5:42 am, two detective constables entered the cell and subdued Mr. Kanani, along with Det. Cst. Smith who placed leg iron restraints on his ankles. The Crown agrees that these actions were appropriate given Mr. Kanani's behaviour.

[4] However, while Mr. Kanani was on the ground and was being restrained by the other two detectives, Det. Cst. Smith kicked Mr. Kanani once in the upper left leg, and then stepped on his buttock twice. Just before she left the cell, she gestured at Mr. Kanani and shook her finger at him as she appeared to speak to him.

[5] After the matter was reported and the video was reviewed, Mr. Kanani was interviewed about the incident, but said that he didn't remember being kicked. He suffered no injuries.

[6] Det. Cst. Smith indicated to her counsel from an early stage that she wished to plead guilty and admit her wrongdoing. She has 24 years of exemplary policing behind her, and numerous commendations for good service. Her lawyer explained that in part, her reaction to Mr. Kanani resulted from a fear of injuring her back while he was acting out. Some months earlier, she had been diagnosed with a herniated lumbar disc and was advised to avoid activity involving excessive bodily force or fast movement. After this incident, she was re-assigned to administrative duties at the Caledon OPP detachment. I am advised that there are parallel proceedings under the Police Services Act, and that she may be demoted as a result of this matter.

[7] A number of officers with whom Det. Cst. Smith worked wrote letters on her behalf. They indicated that she has excellent supervisory skills, and a gentle and fair personality. She is seen as professional and calm in dealing with the public. Her friends and neighbours know her to be an honest, peaceable and hard-working person. Her partner wrote that the two of them have been under considerable stress recently as they try to start a family, and said that she is a kind and good person. It can be concluded that this incident was out of character for Det. Cst. Smith.

[8] Taking into account these mitigating factors, the defence submits that a conditional discharge would not be contrary to the public interest, especially given that it was a two second loss of judgement in the context of an exemplary career spanning almost 25 years.

[9] The Crown agrees that the act of kicking and stepping on Mr. Kanani was a momentary lack of control and judgement on the officer's part. The Crown accepts that Det. Cst. Smith is genuinely remorseful and that specific deterrence is not a concern in this case. However he points to the aggravating factor that this prisoner was vulnerable and intoxicated when he was assaulted. Mr. Kanani was handcuffed and shackled at the legs, and two other officers were attempting to restrain Mr. Kanani on the ground when Det. Cst. Smith assaulted him. The Crown seeks a suspended sentence to register the court's disapproval of this conduct, and to denounce it in no uncertain terms.

[10] I agree with the Crown that this was a gross breach of trust by Det. Cst. Smith and that sending a message of general deterrence and denunciation is of critical importance. Here, the violence was gratuitous, and any demonstration of control or power over the prisoner was unnecessary, since Mr. Kanani was already restrained, on the ground, and almost entirely subdued. While it is true that Mr. Kanani was behaving badly, police officers are trained professionals who must confront bad behaviour every day. It's the nature of the job.

[11] I must point out that I strongly disagree with the comments put forward in two of the references submitted on Det. Cst. Smith's behalf. In those letters, one writer suggested that Det. Cst. Smith's actions were "necessary to protect the person being detained from injuring himself or anyone else". He further opined that in his view, the reporting of Det. Cst. Smith's behaviour by other officers created an "unforgivable" expense and loss. Another writer with the same last name was amazed that fellow officers initiated this case, and stated that in her opinion, this was an example of a police officer being harshly judged.

[12] The authors of these letters are uninformed and they are wrong. They are obviously unaware that Det. Cst. Smith pleaded guilty to a crime, and has admitted her wrongdoing. Through her counsel, I am told that Det. Cst. Smith does not share the views of these people. However, let me be crystal clear about the views of the court: the officers who brought this matter forward are to be commended. Whenever criminal activity is suspected on the part of the police, it should be rooted out. Otherwise, it will fester and tarnish the reputation of the entire force.

[13] Det. Cst. Smith has acknowledged that the assault she committed was wrong, and she has publicly accepted the shame and dishonour that she brought on the police by her actions. She is genuinely sorry. She will likely be demoted. In these circumstances, is it necessary to impose a criminal conviction to further denounce her conduct?

[14] The case law is clear that a conditional discharge is an available option in an appropriate case. In fact, in a number of situations not dissimilar to this, Ontario judges have imposed a discharge: see R. v. Kidd, [1998] O.J. No. 1739 (Gen. Div.); R. v. Dugdale, [2005] O.J. No. 5690 (O.C.J.); R. v. Cardinal, [2005] O.J. No. 3678 (O.C.J.); and R. v. Hutchison, [2009] O.J. No. 3588 (O.C.J.); cf. R. v. Prince, [2009] O.J. No. 6291 (O.C.J.).

[15] The process of having a police officer investigated, charged and found guilty in a public court of law sends a loud message of deterrence and denunciation to all police officers that this conduct is criminal and will be prosecuted. In that sense, the process itself restores public confidence in the criminal justice system by demonstrating that police officers are not above the law and will be held accountable for gratuitous violence. In some cases, the circumstances will involve a level of violence or a degree of planning and deliberation or a severity of injury that demands that a criminal conviction be entered or a jail sentence imposed. Here, however, the violence was minimal, there were no injuries, and the officer's loss of control was momentary and out of character. In my view, weighed in the balance of almost 25 years of good service, a conditional discharge is not contrary to the public interest.

[16] Denunciation and deterrence will be reinforced by a period of probation for 12 months, and an order that Det. Cst. Smith continue to repay her debt to the community by doing 100 hours of community service work.

Released: to the parties on September 3, 2012; in court on September 6, 2012

Signed: Justice Leslie Pringle