Court File and Parties

Ontario Court of Justice

Date: June 7, 2018

Court File No.: Halton 17-1571

Between:

Her Majesty the Queen

— and —

Bradley Murray

Before: Justice D.A. Harris

Heard on: April 23, 2018

Reasons for Sentence released on: June 7, 2018

Counsel

Peter Scrutton — counsel for the Crown

Joanne Mulcahy — counsel for the accused Bradley Murray

Reasons for Sentence

D.A. HARRIS J.:

Introduction

[1] On the surface, everything seemed to be going very well for Bradley Murray.

[2] He was married and had a young son.

[3] He was actively involved and well regarded in his community.

[4] At work, although only in his thirties, he was a highly respected senior officer with the Halton Regional Police Service.

[5] It appeared that things could not be better for Mr. Murray, at least as I said before, it appeared so on the surface.

[6] Unfortunately, problems of Titanic proportions lurked beneath the surface.

[7] Mr. Murray was suffering from PTSD arising out of his work.

[8] This was exacerbated by the fact that his son had been born with congenital heart disease requiring open heart surgery at six months of age.

[9] It was exacerbated even more by Mr. Murray's own physical problems.

[10] Over a period of years, he had suffered various injuries. The treatments for these injuries had included the prescription of pain-killing drugs. The drugs progressed to stronger and stronger opiates and he became addicted to these drugs.

[11] Eventually, he was no longer able to legally obtain the drugs needed to feed this addiction. He then turned to alternative, illegal ways to find them.

[12] He was found out and charged with a number of criminal offences.

[13] On April 23, 2018 Bradley Murray pled guilty to the charge that between August 27, 2015 and April 30, 2016, at the Town of Oakville, being an official, a member of the Halton Regional Police Service, he did commit a breach of trust in connection with the duties of his office by stealing and/or tampering with seized evidence and/or exhibits relating to Halton Regional Police case number 2015-204975, contrary to section 122 of the Criminal Code.

[14] This is an indictable offence.

[15] Mr. Murray is before me today to be sentenced.

[16] Crown counsel suggested that I should suspend sentence and place him on probation for one or two years.

[17] Counsel for Mr. Murray suggested that I impose an absolute discharge, or in the alternative, a conditional discharge with probation for one year.

[18] I find that a conditional discharge with probation for three years is the appropriate sentence.

[19] My reasons for this are set out under the following headings:

1. The law regarding conditional discharges
2. The fundamental purpose and principles of sentencing
3. The facts underlying the offence
4. The background of Mr. Murray
5. Analysis

Conditional Discharge

[20] Section 730(1) of the Criminal Code provides that:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[21] There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life. So I can grant Mr. Murray a conditional discharge if I consider it to be in his best interests and not contrary to the public interest.

[22] In Regina v. Sanchez-Pino, the Ontario Court of Appeal stated that:

16 …In my view, the primary purpose of Parliament in enacting that section was to provide that an individual, although found guilty of what may loosely be described as a "less serious" offence, would not have a conviction recorded against him in all cases. In other words, he would not "have a criminal record" as a result of the occurrence.

17 The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

18 Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

[23] In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:

(1) Discharges are not limited to technical or trivial violations;

(2) Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and

(3) While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.

[24] In R. v. Meneses, the Ontario Court of Appeal took into account:

(1) that the appellant was a widow with children;

(2) that she had a good standing in the community;

(3) that she had no criminal record;

(4) that her misconduct was an isolated one and out of keeping with her past good character; and

(5) that a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already had some expertise.

[25] It was in the public interest for this woman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family.

[26] Further:

The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence. A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receive either an absolute or conditional discharge.

[27] Finally:

It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge.

[28] In R. v. Carson, the Ontario Court of Appeal stated that:

The sentencing judge rejected certain of the Crown's submissions concerning sentence on the basis that they would have an unnecessarily harsh impact on the appellant's prospects to continue his employment as a police officer. This is a legitimate factor, among others, to be taken into account at a sentence hearing. Neither the appellant's personal interest nor the societal interest would be served by the imposition of a sentence, not otherwise warranted, that would preclude the appellant's continued employment as a police officer.

[29] There are of course limits on how far this may be taken. In R. v. Swierszcz, the Ontario Court of Appeal stated that "The fact that a person may suffer professional consequences cannot justify the imposition of a sentence that is outside of the appropriate range". The Court of Appeal allowed the Crown appeal since a conditional discharge was far outside of the range appropriate for the kind of criminal conduct in that case.

[30] That does not however take away the fact that, subject to the above limitation, collateral consequences, such as a negative impact on employment, are a legitimate factor to be considered when determining the appropriate sentence.

[31] I also note the following comments by Justice Hill of the Ontario Superior Court of Justice in two summary conviction appeals:

(1) Discharges are not restricted to trivial matters;

(2) Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction;

(3) Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration;

(4) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge.

[32] Counsel for Mr. Murray provided me with a casebook containing 31 cases from across Canada in which discharges were granted.

[33] A number of these involved police officers taking money or property or services valued at less than $6500. Three cases involved the simple possession of drugs by a police officer and another involved a charge of double doctoring. One very unusual fact situation involved the theft of a firearm.

[34] There were also a number of cases involving breaches of trust by people who were not police officers.

[35] I agree with Crown counsel that none of these involved a breach of trust of the same magnitude as that committed by Mr. Murray. Accordingly, all I am taking from these cases is the fact that under the right circumstances, a discharge may be an appropriate sentence in cases involving a police officer who committed a breach of trust.

[36] Even cases involving more serious offences are of limited assistance because these decisions all turn on their own unique circumstances.

[37] The same can be said for the cases provided by Crown counsel.

[38] It is clearly necessary for me to examine the fundamental purpose and principles of sentencing in order to determine whether a conditional discharge would be appropriate in the particular circumstances of this case.

Fundamental Purpose and Principles of Sentencing

[39] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[40] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[41] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[42] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[43] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[44] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[45] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[46] Section 718.2(a)(iii) provides that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[47] In R. v. Leblanc, 2003 NBCA 75, the New Brunswick Court of Appeal stated that:

If one unbundles the several principles that come into play in shaping a fit sentence for conduct by an on-duty police officer amounting to criminal breach of trust under s. 122, general deterrence and denunciation overshadow all others. Those principles command more than lip service; they must impact upon the sentencing process and help shape its outcome.

[48] The court went on to say that "only the most exceptional circumstances can justify a discharge, absolute or conditional, for breach of trust by a police officer in the execution of his duties".

[49] Crown counsel conceded in his submissions that addiction or mental health issues constitute exceptional circumstances. In support of this position, he included in his case book, R. v. Lensen, a decision in which the Ontario Court of Appeal upheld a suspended sentence and probation imposed on an RCMP officer who was responsible for the drug vault where seized illegal substances were kept. He converted a large quantity of cocaine (1 kg) that had been deposited in the vault to feed his own addiction. When his addiction and theft became known he was fired and from that time devoted his efforts to overcoming his addiction and assisting others similarly situated.

[50] Section 718.2(d) provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[51] The Supreme Court of Canada noted in Gladue v. The Queen that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.

[52] Before applying these principles, I must take into account the facts underlying the offence and the background of Mr. Murray.

The Offence

[53] The following is taken directly from the Statement of Agreed Facts filed as an exhibit in this case.

Bradley Murray's Background at Halton Regional Police Service

[54] Bradley Murray is 39 years old. He is married and has a 12 year old son.

[55] Murray has been a member of the Halton Regional Police Service since April 2001.

[56] He briefly joined Brantford Police Service in April 2002 as a uniform constable.

[57] He re-joined Halton Regional Police Service in November 2002 carrying out uniform patrol duties in 3 District.

[58] From May 2005 to September 2005, he was assigned as a detective constable in the Break and Enter Team of CIB at 3 District. In September 2005 he joined the Drug and Morality Unit where he worked as a Detective Constable until June 2009. At that time he was promoted to the rank of Sergeant and was transferred to 3 District as a uniform patrol sergeant.

[59] From February 2010 to June 2010, he was a detective in the Intelligence Led Enforcement Team of the CIB at 3 District. From June 2010 to December 2010 he was a detective in the Persons Team of CIB at 3 District. In January 2011, he was transferred as a detective to the Regional Investigative Services Fraud Bureau and specifically to the Card Team.

[60] In January 2013 he was transferred to the Drug and Morality Unit as a detective.

[61] In October 2013 he became the acting Detective Sergeant of the Drug and Morality Unit, where he had been working as a detective.

[62] In January 2014 Murray was promoted to Detective Sergeant at the Drug and Morality Unit. Part of his duties involved supervision of the drug vault where exhibits seized in CDSA arrests were stored.

[63] Murray worked in the Drug and Morality Unit between January 2013 and May 2016. Between March 2014 and April 2016, Murray repeatedly asked his supervisors to be transferred out of the Drug and Morality Unit.

[64] In May 2016, Murray was transferred to 1 District as a platoon staff sergeant.

[65] Over the course of his career with Halton Regional Police Service, Murray has been promoted, has received appraisals describing him as a highly effective contributor to Halton Regional Police Service, and has received commendations, including from the Chief of Police.

The Drug and Morality Unit Exhibit Processes

[66] The Drug and Morality Unit maintains continuity of drug exhibits through secure and documented storage in one of the unit's vaults and/or lockers. These include District Drug Depository Lockers - temporary, secure storage of seized drugs from district officers; Lockers - temporary, secure storage of seized drugs and small drug offence related property; the Division Vault - controlled access, secure storage for drugs and drug offence related property; and Temporary Storage Lockers - secure storage for seized drug exhibits with upcoming court dates.

[67] Access to the drug vault is controlled and restricted. During the relevant period prior to the Quality Assurance audit, access card records indicate that 10 different officers and civilians accessed this vault. Adjacent to the drug vault is a small drug processing room, where temporary drug lockers and drug processing equipment is located. Access to this area is less restricted, as it is used by DMU officers and civilian clerks to hold exhibits to be lodged into the drug vault and added/updated in NICHE.

The Offence

[68] In November 2016, a civilian employee of the Halton Regional Police Service Quality Assurance Bureau conducted an audit of the Halton Regional Police Service Drug Vault, and identified a number of exhibits with potential irregularities. Her report was forwarded to Professional Standards and two senior officers were assigned to review all exhibits with potential irregularities. A number of the flagged exhibits were determined to contain no anomalies or irregularities; those that did were referred to the Toronto Police Service, who agreed to conduct an investigation into the irregularities on behalf of the Halton Regional Police Service.

[69] One such exhibit was the product of an August 20, 2015 arrest. On that date, members of the Halton Regional Police Service arrested a suspect for drug trafficking, seizing 4 grams of cocaine, 10 hydro-morphine pills, 70 oxycodone pills, $4410 in Canadian currency during a search incident to arrest.

[70] On August 27, 2015, a Halton Regional Police Service detective constable processed these seizures as exhibits officer. He took photographs of the exhibits, including a photograph of what he believed were 44 oxycodone pills in exhibit bag #L0124336. He did not make notes about how he classified the pills as oxycodone or about the size of the pills or the markings on the pills.

[71] Exhibits from this arrest were turned over to the Toronto Police Service, who had been asked to conduct this investigation, on December 14, 2016. A photograph of the contents of exhibit bag #L0124336 taken by Toronto Police Service investigators revealed 44 pills of different size and different markings than those contained in the photograph taken by the Halton Regional Police Service exhibits officer on August 27, 2015. There were no irregularities with the seized cocaine or cash or the other pills.

[72] A Toronto Police Service FIS investigator located three fingerprints on the packing tape that remained on the property bag after the Health Canada label #L0124336 was removed. The fingerprints were identified as belonging to Bradley Murray.

[73] It is admitted that during the period between August 27, 2015 and April 30, 2016, Murray committed breach of trust when he improperly accessed exhibit bag #L0124336, which contained what he believed were 44 pills of oxycodone, and replaced them with another product.

[74] It is agreed that Murray took these pills for his own personal use, in an effort to deal with an addiction to prescription pain medication caused by chronic pain, not for the purposes of any illicit sales or recreation.

[75] It is agreed that there is no evidence that Murray had any dealings or involvement in relation to a number of the exhibits flagged with irregularities that were referred to the TPS for investigation.

[76] Having regard to Murray's role dealing with exhibits as officer in charge of the drug vault, the absence of any evidence linking him to other compromised exhibits, and the number of people who accessed the vault or had access to the adjacent area, it is admitted that there were triable issues in this case were it to have proceeded to trial.

[77] It is also agreed that, while a number of months have passed since this charge was laid, this plea should be treated as an early guilty plea, as Murray signalled his intention to resolve this matter early in the process.

Medical History

[78] Mr. Murray has suffered from knee and back injuries, and continuing pain, since 2002. Since 2002 he has had seven separate surgeries on his knee, the most recent of which was performed in May 2017. In the course of medical treatments for his knee injuries and attempts at pain management, he developed an oxycodone dependence for which he received medical treatment in March 2017.

[79] As a result of an injury to his left knee from playing soccer, Murray underwent his first left knee arthroscopic surgery on December 9, 2003. Post-surgery pain was managed with prescribed Tylenol 3s.

[80] In 2005, Murray joined the Drug and Morality Bureau of the Halton Regional Police Service. While in the Drug and Morality Unit, his son was born with congenital heart disease requiring open heart surgery at six months of age. As a result of the stresses of having an ill child and as a result of the ongoing struggles of being a member of the Drug and Morality Bureau, Murray was prescribed lorazepam and ciprolex to cope with anxiety and hypertension.

[81] In 2008, Murray began to train for his first marathon. In the course of this training, he began to suffer from lower back pain and left knee discomfort. He was initially prescribed Tylenol 3s to manage the pain and was subsequently prescribed percocets.

[82] In December 2009, Murray was injured on duty while working uniform patrol in Milton as a patrol supervisor. He underwent his second arthroscopic surgery on his left knee on March 24, 2010. Pre and post-surgery pain was managed with prescribed percocets.

[83] In March 2013, Murray suffered another injury playing soccer and underwent his third arthroscopic surgery on his left knee on April 19, 2013. Pre and post-surgery pain was managed with prescribed percocets.

[84] On April 16, 2014, Murray underwent his fourth arthroscopic surgery on his left knee. Pre and post-surgery pain was managed with prescribed percocets.

[85] On April 22, 2015, Murray underwent his fifth arthroscopic left knee surgery. Pre-surgery and post-surgery pain was managed with prescribed percocets.

[86] In September 2015, Murray attended Oakville Pain Care Clinic where he was prescribed percocets, oxyneo and given cortisone and orthoscopic pain injections every two weeks in his lower back and left knee.

[87] Because Murray continued to suffer extreme pain in his left knee despite the surgeries, he was referred to another surgeon in May 2016.

[88] In June 2016, Murray began to experience extreme pain in his right knee for the first time. An MRI revealed several meniscus tears.

[89] Prior to surgery, Murray was prescribed oxycodone immediate release pills and oxyneo extended release tablets.

[90] On October 12, 2016, Murray underwent his sixth surgery: left knee arthroscopic surgery and high tibial osteotomy. A small steel wedge was inserted into the tibial bone secured by screws and a steel plate. The surgery was extremely painful and not successful.

[91] After the surgery Murray's pain continued and it was evident that the high tibial osteotomy was not successful. On May 15, 2017, Murray underwent his seventh surgery. The hardware from the high tibial osteotomy was removed.

[92] Murray is scheduled to have a full knee replacement on August 17, 2018.

Addiction and Treatment Efforts

[93] In the course of medical treatments and attempts at pain management, Murray developed an addiction to oxycodone.

[94] In March 2017, he attended Homewood Health Centre for oxycodone dependence (severe opioid use disorder) and completed a five week inpatient program from March 14, 2017 to April 18, 2017.

[95] Starting just prior to his attendance at Homewood Health Centre, and while at Homewood Health Centre and since his discharge from Homewood Health Centre, Murray has been prescribed suboxone (an anti-opioid program).

[96] Murray has been completely abstinent since March 2017 (as confirmed by independent urine testing).

[97] Murray has also completed the out-patient after care program at Homewood Health Centre from May 1, 2017 to January 8, 2018.

[98] Since his release from Homewood Health Centre in April 2017, Murray has been an active participant in AA, attending three to five meetings per week. He has a sponsor. He is the group treasurer of his AA home group. He has been an active participant with the Heart group (a weekly support/therapy group for police officers).

[99] In 2018, he began working as a weekly volunteer with Homewood Health Centre with the front line professional group at Addiction Medicine Services.

[100] He was treated by police psychologist Dr. Jane Storrie from 2016 until early 2018.

[101] He was diagnosed as suffering from PTSD on December 28, 2017 and is receiving treatment pursuant to this diagnosis from Tom Walker, a Trauma Therapist.

[102] He completed the addiction care worker counsellor diploma program through McMaster University in April 2018.

[103] He has no criminal record.

Background of Mr. Murray

[104] I have been provided with two bound volumes of materials submitted on behalf of Mr. Murray. These include the following:

[105] A chronology and summaries of his career within Halton Regional Police Service;

(1) A Chief's Commendation, another award and several letters from superior officers within Halton Regional Police Service praising him for various services in his police career;

(2) 12 Halton Regional Police Service job evaluations of Bradley Murray;

(3) Seven newspaper articles regarding Halton Regional Police Service operations Mr. Murray was involved in;

(4) Excerpts from five Halton Regional Police Service Annual Reports referring to Halton Regional Police Service operations Mr. Murray was involved in;

(5) 31 letters of support from family members (13), friends (5) including one individual involved in providing services to the learning disabled, police officers (8), the executive director of an organization that focuses on preventive measures to fight human trafficking, and fellow members of AA (4).

(6) Four letters and other materials regarding his volunteer work in the community;

(7) Letters and reports from various doctors regarding his physical injuries and the medications prescribed to manage pain;

(8) Letters and reports regarding his residential treatment program, and follow-up programs regarding his addiction;

(9) Letters and reports from his psycho-therapist and other counsellors regarding his treatment and counselling regarding his mental health issues;

(10) Letters and materials regarding his involvement with AA;

(11) Materials from the media etc. regarding the opioid crisis.

[106] To the extent that these materials simply confirm and elaborate what was contained in the agreed facts set out above I am not going to repeat what is written there. I will however refer to the following.

[107] Mr. Murray is 39-years-old.

[108] After completing high school he attended Mohawk College for a one-year diploma in Police Foundations. He was hired immediately after graduation by the Halton Police. His record as a police officer is set out in considerable detail in the agreed statement of facts above. I shall not repeat that here.

[109] He has been suspended since May 2017.

[110] He and his wife met 20 years ago. She was and is an educator with the local school board. After marrying and buying their first home, in 2005, their son was born. The family continue to reside in Brantford.

[111] His history of physical injury and his decline into addiction to opioid painkillers is well chronicled above.

[112] I note however the following details with respect to his suffering from PTSD, depression and anxiety. These are taken from the report of psychologist Dr. Anna B. Baranowsky.

[113] During his policing career, Mr. Murray witnessed many things that he found disturbing and that "stuck" with him. These include the following.

[114] Very early on in his career he was young, inexperienced, and terrified to be in close proximity to one of the first human bodies he had to deal with. He was sent with the body to the morgue for the autopsy. He recalls specific gruesome details of the autopsy that he still dreams and thinks about.

[115] In the spring of 2003, he had to attend a scene where a little girl was run over by a school bus at a school yard. The scene was "incredibly gruesome" and "disturbing". He had to question witnesses in the school auditorium without any privacy, a process he found to be insensitive. He is still hyper vigilant in parking lots and in school yards, especially when with his son. Some things still trigger memories and unwanted flashbacks of this scene.

[116] In 2009 there was a stabbing at a house party on one of his first nights as a sergeant. The party was chaotic with at least 40 impaired party goers. Mr. Murray still remembers one officer applying pressure to a stab wound of one young male and another very young officer giving CPR to a stab victim had already passed. Mr. Murray's immediate thoughts were of what he was going to have to tell the victim's parents. He did not finish with the scene until 5:00 a.m. when he then had to immediately deliver the next of kin notification. He remembers feeling nauseous and sick as he prepared to notify the father of his son's death.

[117] During the summer of 2010, Mr. Murray was the sergeant in charge of the team responsible for investigating all suicides or suspicious deaths. The majority were males who died by hanging. Through his career, Mr. Murray attended approximately 10 suicides where male victims hung themselves.

[118] The trauma that Mr. Murray suffered as a result of his regular police duties was complicated by, what he described as "a toxic work environment". He was relentlessly taunted for his weight, the appearance of his body and genitalia, and the clothing he wore. He reported that this verbal abuse occurred both in private, as well as in public. Vulgar and shaming things were broadcasted about him over the police radio during surveillance operations. His colleagues on the drug team regularly and purposefully embarrassed him in front of members of other teams.

[119] After his son was born with a congenital heart defect and had to undergo open-heart surgery at the age of six months, not only did members of his team not extend any sympathy or kindness for his son's struggles, but they vandalized pictures he had of his son on his desk.

[120] While away on training with the drug team, someone took pictures of him while sleeping naked on a hotel room bed and then secretly inserted these pictures in a workshop presentation Mr. Murray had put together.

[121] In another incident he was getting training that involved a full hazmat suit that needed to be sealed and required an oxygen tank. His partner purposefully taped his suit hood incorrectly to his forehead and then turned off his oxygen tank. This forced Mr. Murray to rip off his hood and subsequently rip off pieces of skin in the process. The terror of feeling like he was suffocating, the pain and bleeding from ripping his skin, and the shame he felt was traumatizing and humiliating.

[122] His anxiety from being taunted and mocked by his colleagues got so bad that he experienced his first panic attack in the middle of giving an RCMP briefing in 2007.

[123] His family doctor prescribed him Lorazepam and then Cipralex to control his anxiety. He has continued to experience panic attacks since his first episode in 2007, described above. However, he had been heavily medicated to avoid these symptoms up to only recently.

[124] All of the letters filed referred to someone who was hard-working, and devoted to his family and his community. They all expressed surprise that Mr. Murray would do anything illegal.

[125] Two letters however stood out for me.

[126] The following is the letter written by his son:

Your Honour,

My name is KM, I am 12 years old and I am the son of Brad Murray.

I had the privilege of living with my dad for my whole life and have looked up to him for my whole life too. He is the best dad in the world and takes good care of me. I was born with heart defects and that was hard for my parents when I needed my heart surgery. My dad is in all my pictures.

For the majority of my life, me, my mom and dad have had a happy life with no problems. He always takes us on vacation and spends time with me when he was not at work as a police officer. Things changed sometimes when my parents started arguing and I did not know what it was about. It was not until about a year ago I found out that my dad was abusing medicine for his knee. We were all very sad and it started to make sense. My dad was always in pain and having surgeries because he played soccer and ran marathons. I looked up to him for that. My dad sat me down and explained everything to me and my mom and I knew it broke his heart. I know that it was wrong but more importantly so does he. He knew that there needed to be a change so he started seeking help he started going to AA meetings to stop taking the medicine. He left us which was sad but he went to Homewood and had treatment to get better. He started seeing counsellors and going to lots of meetings. Then this court case came up this was a set back but it will not stop him!

He knew and still knows that his job is in jeopardy so he started taking online courses to become an Addiction Counsellor and just recently completed his diploma at McMaster University. I know my dad made a few mistakes but they do not define him and anyone should be able to understand and see he is a good man who cares about his family and a great Staff Sergeant who cares about his community. My dad is understanding and loving and has always coached me in my sports even through all of this. Before all of this he worked a lot for his family and I was happy when he was in the paper for doing a good job and getting promoted. On his days off he would always find the time and we would always do something amazing together like golfing or going to the river. My dad always came on my school trips too.

Please try your best to remember everyone makes mistakes, some big and some small, but they deserve a second chance. You can ask all of his friends and family and they will say the same things about my dad. All my friends like my dad too. Some of my friends even call my dad "Uncle Brad". My dad is sorry and is making good choices now. I forgive him and I hope you do too. Please and thank you.

From KM

[127] The following is an extract of the letter from his wife:

Our once happy life was now being shadowed by a fourth member, Addiction. I could see my once confident, happy husband weakening and pre-occupied. I pleaded with him to get help, I begged him to stop. He was in denial and too proud to have me think there was a problem. During this time Brad was promoted to Staff Sergeant and ran the Drug, Morality and Guns and Gang Unit, he was a fantastic officer, always being recognized for accomplishments and given positive attention in the media. It's ironic how the tables can turn and those that once glorified you can so quickly turn and tear you down in ignorance. Throughout Brad's struggles, he asked on several occasions to be transferred out of the Drug Unit and into a different role, this unfortunately did not happen for him. Again, could this have been avoided? At this time, I witnessed first hand his personality changing, the anxiety, moodiness, quick temperament and nightmares. He began kicking and screaming in his sleep, he was stressed and in agony. I knew the wonderful man I married was in there and I prayed for the day he would come back to me.

Last year, my prayers were answered, it was a blessing in disguise and I believe these charges and the fall-out have saved my amazing husband's life. However embarrassing or heartbreaking the scrutiny has been, Brad will rise above, he has made mistakes but that wasn't him, that was addiction, that was mental health. During this time that Brad has been off, he has embraced the rehabilitation program at Homewood Health Centre like every challenge he has ever faced, head-on with dedication and passion. He attends AA meetings on a regular basis and seeks therapy for his PTSD diagnosis weekly. He volunteers his time as a coach in our community, at our local food-bank and now as a volunteer counsellor back at Homewood in a group for front-line workers, the group he was once a part of. My husband recently completed his Addiction Counsellor Diploma at McMaster University and hopes to give back to the services that so greatly supported him. He reassures me regularly that he will always take care of us. That is my husband, I could not be more proud of him and how he has dealt with this crisis in his life.

Analysis

[128] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

[129] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

[130] General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.

[131] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Murray and yet, at the same time, one that is responsive to his unique circumstances.

[132] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[133] The aggravating circumstances can be found in the facts surrounding the offence.

[134] If I was to consider only these aggravating factors, I would more likely be deciding whether to send Mr. Murray to jail or to impose a conditional sentence of imprisonment.

[135] Everyone including Crown counsel agrees however that the mitigating circumstances of this case are such that these are not the choices facing me.

[136] I will first address the aggravating factors that are present here. I will then address other aggravating factors that are not present here. I will address factors that are both aggravating and mitigating. I will then address the mitigating factors.

Aggravating Factors

[137] As I stated earlier, the most aggravating factor here is the offence itself.

[138] When he became a police constable, Bradley Murray took an oath or affirmed that he would serve the people of this community in an honest and upright manner.

[139] He did that for many years. But then he breached the trust that we placed in him.

[140] He stole drugs. He stole them from the police exhibits locker.

[141] In order to do this, he took advantage of the trust placed in him as one of the people in a police unit who were given access to that locker.

[142] Even worse, he was the supervisor of that unit.

[143] The impact of his action is significant. He brought into question the integrity of the locker and the entire system the police had put in place to ensure that there would be no such questions about what would happen to such drugs, or other exhibits, once they were taken into police custody.

[144] This was a very serious crime.

[145] Having said that and with no intention of in any way minimizing it, I must expressly state what Mr. Murray did not do. I must do this because I am aware that the investigation into the police drug locker involved other problems. These are referred to in the agreed facts. I am also aware that media reports on this case have made reference to these other matters. It is possible that someone reading those reports or hearing about the other problems might conclude that Mr. Murray was guilty of those other illegal acts too. They might well question the sentence that I am about to impose. They might feel that the sentence is far too lenient for someone who did all those things.

[146] In fact I would agree with them. For that reason I point out that the agreed facts in this case specify that Mr. Murray stole drugs on one occasion only. He was not involved in the other incidents. Accordingly, I am sentencing him on the basis that this was a one-time offence.

Factors Both Aggravating and Mitigating

[147] That then brings me to certain factors that are both aggravating and mitigating.

[148] Mr. Murray had no prior criminal record. He was a trusted and respected member of the police service and the community at large. This would usually be a mitigating factor when determining an appropriate sentence. In this case however I note that the same things can be said about virtually everyone who is charged with a breach of trust offence. It is only trusted and respected people who are put in a position where they are able to breach that trust.

[149] On the other hand, they are the people with the most to lose if they are caught. The loss of reputation alone is significant for these people. It certainly has been for Mr. Murray.

[150] On the other hand again, they are the people who can best be deterred by a significant sentence.

[151] I also note that in the case of police officers, they are amongst the people with the resources to rehabilitate themselves. They often have access to employee assistance programs that many others might not be able to afford or even get into.

Mitigating Factors

[152] That brings me to the mitigating factors that are present here.

[153] Mr. Murray pled guilty. I take that to be an expression of remorse and an admission of responsibility. I give extra credit for this plea in light of counsel informing me that there were triable issues if this case had proceeded to trial.

[154] Mr. Murray has expressed his remorse throughout this process.

[155] He has recognized the issues that led him to commit this crime and he has taken steps to address these issues.

[156] In fact he began to address the issues even before he had been charged. Crown counsel suggested that I find that although he had not been charged, Mr. Murray likely could see the writing on the wall as the investigation closed in around him. I disagree with this position. Far too often, people appearing before me for sentencing are still at the stage where all they can do is promise to get the help they need sometime in the future. Mr. Murray on the other hand has completed a residential treatment program and at least the first stage of follow up counselling. He has fully committed himself to further involvement with those programs. In addition he has received training so that he can assist others plagued by the same problems that he has. He has also been actively involved with AA. Finally he has been seeing a psychotherapist.

[157] There is no way that I can give Mr. Murray anything less than full credit for the steps that he has already taken for his rehabilitation and for the commitment he has made to continue to do whatever is necessary in the future.

[158] In that regard, I note that he has the full support of an extended family as well as friends and colleagues. That bodes well for his continued rehabilitation.

[159] Further, he has the incentive of presenting himself as a positive role-model for his son.

[160] I note also that Mr. Murray stole the drugs here in order to feed his addiction.

[161] It is significant that this addiction arose out of him being prescribed opioids to deal with the pain caused by various injuries. A number of these injuries occurred in the course of Mr. Murray's work as a police officer.

[162] His depression and his PTSD also arose out of his work as a police officer. His history brings home the fact that police officers often have to deal with numerous traumatic incidents during the course of their careers. In Mr. Murray's case he also had to deal with what I can only describe as an appalling degree of harassment by police colleagues.

[163] I give Mr. Murray only partial credit for requesting a transfer out of his position as supervisor of the drug unit. I do so because he himself only went part of the way in his request and did not include telling his superiors the reason for his request.

[164] There have been collateral consequences for Mr. Murray.

[165] He has suffered public disgrace. Many friends and colleagues have stood by him but many members of the community have not.

[166] It is possible that he will be fired from his job as a police officer. This, however, is not a significant factor in my decision to grant a conditional discharge to Mr. Murray. Counsel made it clear to me that the sentence that I impose will not be determinative of what happens in that regard. Mr. Murray might be fired even if I grant a discharge. Conversely, he might not be fired even if I enter a conviction. Finally, it is not my task to determine whether he should keep his job and I am expressing no opinion either way in that regard. In any event, it is clear that even if he is not fired, his career will not proceed on the same trajectory that it was on previously.

[167] I will be including a provision for the maximum allowable hours of community service. Community service orders were introduced approximately 40 years ago. At the time they were touted as an alternative to imprisonment. Clearly they can have a deterrent effect. They also provide an element of restorative justice as they require offenders such as Mr. Murray to give something back to the community. In this case I am recommending that wherever possible, Mr. Murray should perform his community service by speaking to community groups about his addiction and his steps to address it.

[168] A community service order can of course be part of either a conditional discharge or a suspended sentence.

[169] In this case, after considering all of the above factors, while I am satisfied that an absolute discharge would be in Mr. Murray's interests, I am not satisfied that an absolute discharge would not be contrary to the public interest.

[170] Mr. Murray has done much already to earn a discharge but he still needs to do more and to do it over an extended period of time.

[171] I am satisfied that a conditional discharge with probation for three years would be in Mr. Murray's interests and that it would not be contrary to the public interest.

[172] I am satisfied that such a sentence, combined with the collateral consequences to Mr. Murray will deter any like-minded individuals from committing a similar offence.

Sentence

[173] For all of the above reasons, I sentence Mr. Murray as follows.

[174] He is granted a conditional discharge with a probation order to run for three years.

[175] The terms of the probation will require that Mr. Murray:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer immediately and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. co-operate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer;

7. perform 240 hours of community service work. This work is to commence by July 15, 2018 and shall be completed at a rate of not less than 15 hours per month. He shall complete the work as directed by and to the satisfaction of the probation officer. He shall complete all of his community service hours by / within 18 months.

[176] I give Mr. Murray four months to pay the victim fine surcharge.

Released: June 7, 2018

Signed: Justice D.A. Harris