Citation: R. v. Valade, 2014 ONCJ 329

ONTARIO COURT OF JUSTICE

Her Majesty The Queen

And

Shawn Valade

REASONS FOR JUDGMENT – SENTENCE HEARING –

Renaud J. – July 7, 2014

Mr. P. Lemieux Duty counsel on behalf of the Accused

Ms. E. Evans Assistant Crown Attorney

The issue to be discussed

Does s. 718.02 of the Criminal Code embrace an offence of uttering a death threat to a peace officer even though there is no direct reference to that offence within the terms of the provisions? For the reasons that follow, I find that the question must be answered in the affirmative.

The accusations

Mr. Valade pleaded guilty on April 28, 2014, to accusations of uttering death threats and to possession of marijuana, prosecuted by way of summary conviction, and a pre-sentence report was ordered.

The factual background

It was agreed by the offender that he was extremely intoxicated on the night in question, and that a police officer was requied to investigate his state of health and Mr. Valade was apparebtly passed out in a public washroom. When he came to sufficiently to understand his situation, he called the investigator officer a vile name which is a corruption of the correct scientific name for a precise racial group, one to which he is not a member, to then utter a number of threats of violence including words to the effect that “I will kill you” and included threats of dire violence directed at the officer’s spouse and children.

The investigation later disclosed a small quantity of marijuana.

The contents of the pre-sentence report

The pre-sentence report disclosed a prior recprd including a distant and a recent conviction for impaired operation, an assault in 2000, fail to comply with probation and release orders, and mischief. It appears that Mr. Valade’s longest prior jail term was of three days’ duration.

Further, the probation officer reported that the offender self-disclosed that he is a workaholic and enjoys a quite satisfactory employment history. It appears obvious that Mr. Valade’s criminal history is directly linked to the abuse of alcohol and other substances, and insight is lacking as there is a direct reference to his record being the result of the actions of others resulting in his picking up a bottle, so to speak, leaving aside his opinion that alcohol use is not problematic.

The offender did assume full responsibility for his actions, a commendable attitude, in light of his inability to recall any of his actions on the evening in question.

The position of the parties

The prosecution sought a 30 day jail term, a weapons prohibition for 5 years, a DNA order, and a period of probation for 12 months. The defence submitted that a conditional jail term is fit, emphasizing the guilty pleas and acceptance of responsibility, and the imperative need to protect his employment.

The principles of sentencing, especially Parliament’s injunction found at s. 718.02 of the Criminal Code

The sentencing principles that are at play include s. 718, s. 718.1, s. 718.02 and s. 718.2(d) and (e) of the Criminal Code, the latter two clauses making plain the need to exercise restraint in the selection of a term of imprisonment.

More to the point of the present discussion, Parliament decreed recently that peace officers (and other vulnerable groups) ought to be further protected by sentencing courts by means of a specific clause, s. 718.02 of the Criminal Code, which reads:

Objectives --offence against peace officer or other justice system participant- 718.02 - When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

Objectifs -- infraction à l'égard d'un agent de la paix ou autre personne associée au système judiciaire - 718.02 - Le tribunal qui impose une peine pour l'une des infractions prévues au paragraphe 270(1), aux articles 270.01 ou 270.02 ou à l'alinéa 423.1(1)b) accorde une attention particulière aux objectifs de dénonciation et de dissuasion de l'agissement à l'origine de l'infraction

Shortly put, the sections refer to assaulting a peace officer and intimidation of a justice system participant.

Section 718.02 of the Criminal Code, R.S.C. 1985, c. C-46, is found in Part XXIII, titled “Sentencing”. The provision was enacted by means of S.C. 2009, c. 22, s. 18, and has been in force as of October 2, 2009, under the authority of SI/2009-92.

The next three provisions, ss. 270.01, 270.02 and 270.1, respectively, were also enacted by means of S.C. 2009, c. 22, s. 18, and have been in force as of October 2, 2009, under the authority of SI/2009-92. They serve to augment the protection that peace officers should enjoy by creating offences which are equivalent to existing crimes of violence with the added aggravating element that the victim of the offence is a peace officer. Previously, if a constable was the victim of an assault involving a weapon, the charge had to be pursued under s. 267 and not s. 270 of the Code and thus, the record would not obviously point to an offence of violence against those who serve and protect. Further, the offence of disarming a peace officer is new, and addresses an existing concern by elevating what was an aggravating circumstance in sentencing into a separate offence.

In light of this legislative enactment, the Court is at liberty to conclude that Parliament’s intent is to protect peace officers by severe sentences, all other things being equal, in the cases involving the precise offences noted above. The question is whether s. 718.02 is engaged in the case of a death threat made to a police officer. For the reasons set out below, I conclude that the spirit of Parliament’s intent is best respected by a generous and liberal interpretation of s. 718.02 in which a reference to uttering threats to a peace officer is understood to be part of parcel of the intent of the legislation.

Drawing attention to the legislation in general, R. v. Holloway, 2014 ABCA 87, includes these observations penned by Watson and McDonald JJ.A. in the course of a memorandum of judgment:

20 Similarly, s. 718.01 and s. 718.02 of the Code which give primary to denunciation and deterrence objectives are not merely statements of policy respecting only the individual circumstances of the offence or offender, but embody larger statements of Canadian social norms. The same might be said for some of the factors listed in s. 718.2(1)(c) of the Code. Further still, the concept of totality both at common law (respecting multiple offence transactions) or under s. 718.2(c) of the Code (respecting otherwise consecutive sentences) is in service of a broader principle of restraint also reflected in ss. 718.2(d) and (e) of the Code. Under the totality principle, departures even from proportionate sentences for individual offences are sometimes justified on the basis that an accumulation of proportionate consecutive sentences may simply be unacceptable, again as a matter of Canadian social norms. [Emphasis added]

It is obvious to the Court that the emphasis is on denunciation and deterrence over other principles. After all, this is what was expresed in R. v. Zarafonitis, 2013 ONCJ 570, by O’Donnell J. at footnote 6 to para. 19: “[…] provisions such as s. 718.02 of the Criminal Code, which requires judges to emphasize denunciation and deterrence over other principles of sentencing when imposing sentences for, e.g. assaults on police officers […]”

In my view, the expression “primary consideration” denotes paramountcy in sentencing. In this vein, R. v. Baines, 2013 ABPC 92, includes these remarks:

27 While the principles of denunciation and deterrence in cases involving offences against peace officers are statutorily paramount given the provisions of Section of 718.02 of the Criminal Code, the Court of Appeal in the Ponticorvo [2009 ABCA 117] case went on to indicate that in order to give effect to the principles of denunciation and deterrence in cases of this kind, substantial terms of imprisonment are necessary in all but the most unusual circumstances when offences involve violent assaults on police officers. The case before the Court clearly involves a violent assault on a peace officer and requires a substantial term of imprisonment unless "the most unusual circumstances" exist. [Emphasis added]

An examination of the case law supports the views noted in the paragraphs above, beginning with R. v. Ratt, 2012 SKPC 154, as it provides a good summary of Parliament’s intent to direct primary, but not exclusive, consideration to denunciation and deterrence

In R. v. Ratt, 2012 SKPC 154, Justice Daunt observed at para. 36:

36 Section 718 outlines the fundamental purpose of sentencing, which is "to contribute ... 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 several objectives. Section 718 then lists several objectives of sentencing, including denunciation and deterrence. Apart from the objectives, there are several principles of sentencing, beginning with the fundamental principle in section 718.1: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other principles deal with aggravating and mitigating circumstances, totality, parity, restraint, and especially relevant in this case, the principle that all available sanctions other than jail should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

The Court then remarked: “38 Denunciation and deterrence are two of the six listed objectives of sentencing. Although the sentence should be primarily designed to achieve those two objectives, the principles of sentencing, such as the Gladue factors [with respect to Aboriginal offenders], must still be addressed in crafting a fit sentence”. Further guidance was consigned at para. 39 as to the need to balance all objectives and principles, though the ranking requires that denunciation and deterrence be given primacy. Indeed: “Parliament chose the phrase ‘primary consideration’ and not ‘sole consideration’. This is in contrast to the Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.)) subsection 16(8), which dictates that the Court, when dealing with child custody, "shall take into consideration only the best interests of the child" [Emphasis added by Daunt J.]. Thus other sentencing objectives remain relevant.

The well-reasoned judgment in R. v. Baines, 2013 ABPC 92, includes these remarks, emphasizing that severity is typically called for in cases in which s. 718.02 is engaged

27 While the principles of denunciation and deterrence in cases involving offences against peace officers are statutorily paramount given the provisions of Section of 718.02 of the Criminal Code, the Court of Appeal in the Ponticorvo [2009 ABCA 117] case went on to indicate that in order to give effect to the principles of denunciation and deterrence in cases of this kind, substantial terms of imprisonment are necessary in all but the most unusual circumstances when offences involve violent assaults on police officers. The case before the Court clearly involves a violent assault on a peace officer and requires a substantial term of imprisonment unless "the most unusual circumstances" exist. [Emphasis added]

56 The Criminal Code of Canada, Section 718.02 states that when a court imposes a sentence for an offence against a peace officer or other justice system participant, the court shall give primary consideration to the objectives of denunciation and deterrence when considering the appropriate sentence for the offence. In addition, the Alberta Court of Appeal has stated that in order to give effect to the principles of denunciation and deterrence in cases of this kind, substantial terms of imprisonment are necessary in all but the most unusual circumstances when offences involve violent assaults on police officers. The case before the Court involves a violent assault on a peace officer and therefore requires a substantial term of imprisonment unless "the most unusual circumstances" exist. [Emphasis added]

Of course, the need for a blended and balanced consideration of all principles in this case, as in all others cases of sentencing, goes without saying. In this vein, R. c. Jacko, 2013 QCCQ 931, includes direct remarks on the need for a sentencing court to balance its application of all relevant principles and objectives. As we read at para. 4 and at para. 5:

4 L'article 718.02 C. cr. prévoit que le juge doit accorder une attention particulière aux objectifs de dénonciation et de dissuasion lorsque le délinquant s'est porté à des voies de fait sur un agent de la paix. De plus, afin de déterminer une juste sanction, le Tribunal doit aussi considérer les principes suivants :

a) La peine doit être adaptée aux circonstances aggravantes ou atténuantes liées à la perpétration de l'infraction ou à la situation du délinquant;

b) L'harmonisation des peines, c'est-à-dire l'infliction de peines semblables à celles infligées à des délinquants pour des infractions semblables commises dans des circonstances semblables;

c) L'obligation d'éviter l'excès de nature ou de durée dans l'infliction de peines consécutives;

d) L'obligation, avant d'envisager la privation de liberté, d'examiner la possibilité de sanctions moins contraignantes lorsque les circonstances le justifient;

e) L'examen de toutes les sanctions substitutives applicables qui sont justifiées dans les circonstances, particulièrement comme en l'espèce en raison de l'origine autochtone de l'accusée.

5 Enfin, la peine doit être individualisée et personnalisée.

In this case, the threat advanced by Mr. Valade included the possibility of repeated violence towards his spouse and children. Noteworthy in this vein is the case of R. v. Morine, 2011 NSSC 46. Para. 67 records a number of aggravating factors, including the deliberate choice “[…] to spit into Constable Wetzel's face, to insult and mock him, and to later threaten to spit in his face again if he had the chance.” Later, this fact was emphasized: “73 […] I take into account that there was a threatened second assault of spitting later, while the opportunity presented itself.”

I note as well the instruction found in R. v. Lavallee, 2011 CanLII 6668 (Nfld. Prov. Ct.), at para. 15:

It has been held that those who assault peace officers ‘should expect imprisonment’ to be the result (see R. v. Jacobish, [2008] N.J. No. 255 (S.C.), at paragraph 37). In R. v. McArthur, 2004 CanLII 8759 (ON CA), [2004] O.J. No. 721 (C.A.), at paragraph 49, the Ontario Court of Appeal indicated that "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."

For ease of reference, I have reproduced below additional passages from the McArthur decision, 2004 CanLII 8759 (Ont. C.A.), cited immediately above at para. 15 of R. v. Lavallee, 2011 CanLII 6668 (Nfld. Prov. Ct.). This may be said to be the “black letter” expression of the state of sentencing law before the introduction of s. 718.01 of the Criminal Code:

[48] A conviction for attempted murder will almost inevitably result in a lengthy penitentiary term. These attempted murders are particularly egregious. They occurred in the course of the respondent’s flight after committing serious crimes. There were four victims, all of whom were seriously hurt and continue to suffer significant adverse effects from the shooting. The respondent used a particularly dangerous weapon which on the evidence was “manufactured to kill”. The shootings were obviously the result of a considered decision by the respondent to use deadly force if he met any resistance from the police. These shooting were the product of a careful plan implemented with deadly detachment and efficiency. Only sheer good luck foiled the respondent’s desire to kill those who would try to stop him.

[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]

[50] The murder of a police officer acting in the execution of his duty attracts the highest penalty our law permits: Criminal Code s. 231(4)(a). The respondent did everything within his power to commit that crime.

[51] Thankfully, the use of deadly force against police officers by those seeking to avoid capture is relatively rare in Ontario, as is the use of deadly force by police officers against fleeing felons. Counsel could not recall any other case in this Province where an individual seeking to avoid capture attempted to murder and seriously wounded three police officers. We are also unaware of any such case. We cannot think of a more serious case of attempted murder than the shooting of these three police officers.

[52] The seriousness of all of the offences committed by the respondent, particularly the attempted murders, and his high level of personal culpability in each and every one of these offences points strongly to life imprisonment as the appropriate sentence.

I conclude by noting the unique position in Canadian society occupied by peace officers. In this regard, R. v. Bal, 2013 BCPC 21, reminds us of this generally understood proposition at para. 93:

93 Police officers occupy a special and unique position in our society. Section 718.02 gives primary consideration for denunciation and deterrence in cases of persons assaulting peace officers. "The public places a great deal of trust in police officers […]” Regina v. Sweet, 2007 BCPC 240, para. 31.

Conclusion

In conclusion, it may be said that there is nothing remarkable about the contents of s. 718.02 of the Criminal Code as it may be suggested that it merely codifies the existing common law sentencing approach, but with a view to emphasizing Parliament’s will that police officers be the subject of an express “aggravating clause” in order to better protect them from violence, on the one hand, and in order to make plain that the Courts will respond with severity to any harm visited upon members of this protected class. The aggravating impact of violence against a peace officer, as a member of a protected class, was made plain in R. v. Miller, 2002 CanLII 45072 (Ont. C.A.), at para. 7:

[7] The trial judge … [was not] unmindful that the victim was a police officer, of whose profession this Court has said:

Police officers, in the performance of their duties, are the representatives of the whole community, and an attack upon them is an attack upon the structure of a civilized society. Further, police officers, in the performance of their duties, are often in a position of special vulnerability and are entitled to such protection as the law can give. R. v. Forrest (1986), 15 O.A.C. 104, at 107, per Zuber J.A.

Thus, surely Parliament intended that aggravating weight in accordance with s. 718.02 be assigned to offences of uttering a death threat to a peace officer, as occurred in this instance, all other things being equal.

In the result, a 30 day jail term is imposed, together with a 5 year weapons prohibition, a D.N.A. order, and a victim fine surcharge.