Court Information

Location: St. Catharines

Date: 2018-08-29

Court: Ontario Court of Justice

Before: Justice Fergus O'Donnell

Reasons for Sentence Delivered: 22 August 2018

Written Reasons Released: 29 August 2018

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

Michael Baxter

Counsel:

• M. Perlin for the Crown
• J. Markson and K. Robertson for the defendant, Michael Baxter

Reasons for Sentence

Overview

[1] Police misconduct, like the misconduct of other people, covers a tremendous range, from the officer who routinely parks unlawfully outside the local greasy spoon for no reason other than that he can get away with it, through protracted and serious criminal schemes designed to generate illicit income and/or to pervert the course of justice, to offences that injure or kill citizens. The public is understandably concerned by any allegation of police misconduct because it undermines the bond that should exist between the citizen and the police service. This essential bond is reflected in Sir Robert Peel's philosophy that the ideal model of policing is one where, "the police are the public and the public are the police." Any behaviour that undermines that bond is injurious to the public good.

[2] As with any criminal sentencing, this case considers the appropriate penalty for a specific instance of misconduct by a specific person in a specific context. After a trial I found Sergeant Michael Baxter guilty of the offence of assault causing bodily harm. The bodily harm, a "nasty gash", was on the low end of the threshold set out for that term in the Criminal Code, namely, "any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature." The matter went over several months after the finding of guilt before sentencing submissions were made in late June of this year, accompanied by voluminous material with respect to Mr. Baxter's background and the impacts and potential impacts of the criminal charge and its outcome.

The Positions of the Parties

[3] In the present case, Mr. Markson and Ms. Robertson, on behalf of Sergeant Baxter, ask for either an absolute discharge or, failing that, a conditional discharge with probation for no longer than twelve months and approximately one hundred hours of community service. Mr. Perlin for the Crown seeks a sixty day conditional sentence; he says that both a discharge and a suspended sentence would fail to meet the requirements of sentencing for this case.

The Facts

[4] I shall not linger long on the facts, which are set out in substantial detail in my reasons for judgment on the trial proper. Bradley Stirtzinger is very well known to members of the Niagara Regional Police ("NRPS"). Although he can apparently be quite amiable on those occasions when he is sober, when intoxicated, which appears to be often, Mr. Stirtzinger can be annoying, obnoxious and aggressive. He carries the dual burdens of mental health and substance abuse issues. He is flagged as a spitter and as a carrier of communicable diseases on the NRPS database. He is also flagged as violent. He has a substantial criminal record, going back three decades. I think it would be fair to describe Mr. Stirtzinger as much more a sad and tormented person than an evil one, although that distinction does not by any means reduce the persistent and prolonged impact of his behaviour and offences on those around him.

[5] At the time of the offence, Mr. Baxter was a newly-minted sergeant. Upon his promotion in April, 2016 he was moved from detective work into a supervisory uniform position in Niagara Falls. By that time, Mr. Baxter was more than a decade-and-a-half into his career with the NRPS. Almost exactly two years ago, on 16 August, 2016 Sergeant Baxter responded to a radio call about Mr. Stirtzinger, who had once again made himself unwelcome outside a Shoppers Drug Mart in Niagara Falls and from there had made his way around the neighbourhood. He was known at the Shoppers Drug Mart for aggressive pan-handling and on that date had engaged in a confrontation with one of the employees, after which he left, checking the doors of some parked cars as he did so. Other people in the area reported that he had been trying car doors in driveways nearby and had been yelling at passing cars and had thrown a clock at them. Finally, as Sergeant Baxter followed Mr. Stirtzinger's trail around the neighbourhood, a woman in the plaza across the street reported that she had come out to her car to find Mr. Stirtzinger in it and pointed him out as he left through a distant corner of the parking lot.

[6] Sergeant Baxter caught up to Mr. Stirtzinger behind another plaza. Mr. Stirtzinger originally kept walking away from Sergeant Baxter, who had told him to stop because he was going to arrest him. There is no doubt that Mr. Stirtzinger continued tossing various unpleasantries back towards Sergeant Baxter, but Mr. Stirtzinger did eventually stop. Sergeant Baxter told Mr. Stirtzinger to put down a bag he was holding, which Mr. Stirtzinger began to do. It was Sergeant Baxter's evidence that around this time Mr. Stirtzinger then reached up towards his waist, thus supposedly becoming non-compliant with his instructions. Saying that he feared Mr. Stirtzinger was reaching for a weapon, Sergeant Baxter grabbed Mr. Stirtzinger and pushed him against a nearby fence, whence Mr. Stirtzinger was pushed, face-first and sideways, along a vertical board fence and ultimately "grounded" when Sergeant Baxter took Mr. Stirtzinger to ground by pivoting him to take him chest first to the ground, a recognized technique for certain arrest situations. Regrettably, Sergeant Baxter lost his grip on Mr. Stirtzinger as he pivoted him to the ground and so Mr. Stirtzinger hit the ground with greater force than normal. It was in this moment that Mr. Stirtzinger suffered a laceration to his face.

[7] In my reasons at trial, I held that there was no basis for me to find that Sergeant Baxter intentionally released his grip on Mr. Stirtzinger, thus intentionally increasing his exposure to injury. I did find that Sergeant Baxter's contention that Mr. Stirtzinger had reached up for his waist was not supported by the evidence, including CCTV footage that covered much of their interaction. I was satisfied that while Sergeant Baxter had reasonable grounds to arrest Mr. Stirtzinger, by the time Sergeant Baxter went "hands-on", Mr. Stirtzinger was physically compliant and that Sergeant Baxter's use of force, ultimately ending with the grounding was unlawful. At the same time, while I was satisfied beyond a reasonable doubt that Sergeant Baxter had no lawful justification for using the force that caused Mr. Stirtzinger's injury, his treatment of Mr. Stirtzinger after he had been grounded was professional and involved no use of force.

[8] Sergeant Baxter wrote up his notes of the event the following day. He gave a voluntary statement to the Special Investigations Unit (S.I.U.) about three weeks later. The existence of the CCTV footage was not known to Sergeant Baxter when he gave those versions of what happened. I am satisfied that the events as recounted in Sergeant Baxter's notes and in his S.I.U. interview fall short of a full and frank recitation of what happened.

Mr. Baxter's Background and History

[9] Mr. Baxter is forty-two years old. He is married with one son. He has been a police officer since 1999 and was promoted to the rank of sergeant in 2016. He has no criminal record and no record for discipline under Part V of the Police Services Act. I have been presented with most of his performance appraisals as both a constable and as a sergeant, documents which cover a long period of time. Both the numerical rankings and the text commentary reflect well on Sergeant Baxter. The lowest grading (which is relatively rare in his appraisals) is a three out of five on some categories on a few occasions. This appears to be reflective of a brief, mid-career decline on Mr. Baxter's part and of some reduced scores as he was adapting to his new responsibilities as a sergeant. Scores of four (highly effective) are more typical, and scores of five (outstanding) are not rare. Sergeant Baxter had perfect attendance for most of the decade leading up to this offence. The text entries in the appraisals speak to Mr. Baxter's professionalism, meticulousness, work ethic and community engagement both at work and off the job, among other observations.

[10] I have also been provided with a dozen reference letters from various people in Mr. Baxter's life, including his wife, as well as a summary by Sergeant Baxter himself of the personal and professional impact of being charged. I do not propose to catalogue the contents of those letters, but they reflect a broad and deep insight into Mr. Baxter, including his commitment to his family, his community and his professional duties. There were repeated references to Mr. Baxter as calm, caring, committed, disciplined and respectful. There were examples of his skilful and compassionate handling of difficult situations and repeated comments by officers he worked with about how surprised they were at the finding that Mr. Baxter had used excessive force in light of their experience with him.

[11] Mr. Baxter also filed a copy of a psychiatric assessment. That report showed that he had taken time off on sick leave from 10 November, 2017 until early February, 2018, but had otherwise been working during the period from the charge until now (the time off was after I found Mr. Baxter guilty). Sergeant Baxter told the psychiatrist that his current mood was a four-and-a-half out of ten, compared with nine out of ten before the charges. He spoke of sleep disruption, including a loss of one to two hours of sleep per night compared to his average sleep duration of seven hours. He spoke of reduced self-esteem, attention, concentration and memory. He is concerned but not pessimistic about his future. The psychiatric review and testing, as well as the information the psychiatrist obtained from collateral sources confirmed Sergeant Baxter to be at a very low risk for violence (scoring three out of forty). The report and the letters I referred to earlier demonstrate that the current proceedings have had a significant impact on Sergeant Baxter and his family, including his guilt about how these proceedings have affected his wife and their son.

The Financial Material

[12] Mr. Baxter also provided a breakdown of his estimate of what he has lost financially since his arrest on this charge, which amounted to a total of just over seventy-five thousand dollars, composed of overtime he estimated he would have earned based on his own previous patterns while serving in uniform, along with the availability of overtime during the relevant time period, as well as detective pay, clothing allowances and shift premiums.

[13] I accept that there was financial loss to Sergeant Baxter arising out of his assault on Mr. Stirtzinger. There is no doubt that collateral consequences including financial consequences such as these can be relevant to the process of crafting an individualized sentence. This has very recently been re-affirmed by the Supreme Court of Canada in R. v. Suter, 2018 SCC 34. I am less convinced by Mr. Stirtzinger's numbers and thus of the amount of weight to be given to this collateral consequence in the determination of his sentence. I note that, unlike many people employed by other employers, Sergeant Baxter was able under the Police Services Act to continue working with pay. Even the short period he served under suspension was with pay. As far as his calculations are concerned, I am uncomfortable placing undue reliance on them. I note, for example, that there are certain internal features of his calculations that undermine my confidence in the stringency of those calculations and conclusions. First, there is no indication of whether or not the losses are before or after income tax is applied. The general salary range of police officers in Ontario is a matter of which judicial notice can be taken as those salaries are broadly known and are generally front-and-centre in fairly regular public and press discussions of municipal budgets. Also broadly known is the relatively high marginal rate of taxation that would apply to Sergeant Baxter's income and especially to any overtime he would have earned. Looking at Sergeant Baxter's calculations, I find it extremely unlikely that the losses he calculates are after-tax losses. Further undermining the reliability of Sergeant Baxter's figures is the fact that he includes both "losses" from overtime as well as losses from not receiving detective pay (relating to detective positions he might have competed for and obtained during the time these charges were before the courts). There is a risk of double-counting in those numbers, especially since I do not know how much overtime Sergeant Baxter might have worked in a detective capacity. There is also speculation inherent in Mr. Baxter's calculations, for example that he would have successfully applied for a detective position, bringing with it a pay increase. Quite simply, there is no basis to conclude that Mr. Baxter would actually have obtained any of those positions within the time frame involved. Additionally, Sergeant Baxter's comments about how his career was on a steep upswing and his comments about missing competitions for detective postings are hard to reconcile with his psychiatrist's statement that Sergeant Baxter, "very much enjoys working as a patrol supervisor and wants to continue working in that capacity until he retires from the NRPS." Finally, Mr. Baxter bases his numbers on a time period that covers almost the entire time from being charged to being sentenced. Thus, in addition to him obtaining a detective position being speculative, for example, I am reasonably certain that he would not have obtained such a position instantaneously as of the time of the charge being laid.

[14] Further highlighting these concerns about Sergeant Baxter's calculations is the fact that none of them is underpinned by objective data. I appreciate that this is a sentencing hearing and I also appreciate that Sergeant Baxter was not cross-examined on his unsworn summary, but issue was taken with it. In any event, these shortcomings are self-evident. There were no income-tax records or historic pay stubs entered in the sentencing materials provided by Sergeant Baxter. Lest this be perceived as nit-picking, I note that the other sentencing materials filed were both comprehensive and voluminous, including details such as virtually every performance appraisal since he was a cadet, transfer orders, promotions (including from fourth to second class constable), etc., a certain amount of it irrelevant to any task I have to perform on sentencing. The absence of any objective financial documentation to support the collateral loss of income is particularly striking against that backdrop.

Other Collateral Consequences

[15] I also accept that the process of being charged and the awkwardness and embarrassment inherent in that process have affected Sergeant Baxter. That comes out most clearly in his wife's e-mail on that topic, which was quite trenchant.

[16] I was also provided with two documents relating to the United States immigration consequences of various sentencing outcomes for Sergeant Baxter, namely an internal memorandum from the then Immigration and Naturalization Service of the United States and an opinion letter from United States immigration counsel. The documents show that the United States immigration authorities do not treat a Canadian absolute discharge as a conviction, but do treat a Canadian conditional discharge the same as a conviction. The documents also explore the meaning of a "crime of moral turpitude", which is an important concept in determining admissibility to the United States. Persons convicted of a crime of moral turpitude are inadmissible. The documents presented to me show that entering a conviction against Sergeant Baxter would not render him inadmissible to the United States, because a single conviction (or conditional discharge) for an offence prosecuted by summary conviction that was not a crime involving moral turpitude does not trigger inadmissibility. A conviction or conditional discharge might cause some delay in crossing the border and would require him to satisfy the examining officer of details such as the nature of the charge and the fact that the Crown proceeded by summary conviction, but it would not make him inadmissible.

Considerations on Sentence

[17] In seeking a discharge, Mr. Baxter's counsel stressed that what happened behind the plaza was a rare lapse of judgment, not a true measure of the man or of the police officer that Mr. Baxter is. Mr. Markson pointed to the fact that the embarrassment of these charges goes some way to deterrence. That is a valid observation for any defendant who has led a pro-social life and who takes pride in that as Sergeant Baxter has, but Justice Hill has noted in R. v. Cook, 2010 ONSC 5016, that, "while shame and disgrace may be amplified in the instance of a public official, these consequences are not to be over-emphasized in determining a fit punishment." (at paragraph 37). The embarrassment has undoubtedly been increased by the fact that Mr. Baxter's charges and the finding of guilt (and presumably ultimately the sentence I impose) have been reported in the local press, although I note that in this community criminal cases of all sorts feature in the press and the coverage here has been neither extensive nor unfair. A criminal conviction as opposed to a discharge could well affect Mr. Baxter's very long-term involvement in community programmes such as coaching youth sports.

[18] Mr. Perlin took a somewhat different approach than Mr. Markson in reaching his submission that I should impose a conditional sentence or "house arrest" on Mr. Baxter. When it came to examining the issue of Mr. Baxter's conduct as opposed to his character, while Mr. Markson focused on "what happened", Mr. Perlin also stressed, "what happened after", namely the issue of the disconnect between what actually happened and what Mr. Baxter wrote in his notes and told the S.I.U., keeping in mind that at the time of those two latter events Mr. Baxter did not know that there had been a silent witness to his dealings with Mr. Stirtzinger. It struck me as noteworthy that Mr. Markson, whose presentation and attention to detail are invariably of the highest order, did not address the issue of "what happened after" in his submissions. I cannot for one moment take Mr. Markson's lack of response as inadvertence. Rather, I take his response for the only thing it can be, namely awareness on his part that there is no cogent gainsaying of that argument by Mr. Perlin and, that being the case, from an advocate's perspective, the less said on the matter, the better.

[19] I agree with Mr. Perlin that "what happened after" is a relevant consideration in assessing the appropriate sentence. It is not that Mr. Baxter is to be sentenced for an additional offence or misconduct, but rather that his after the fact conduct is relevant to the precise placement of his offence on the scale of rectitude to blameworthiness.

[20] A fit sentence is one that takes into account the details of the offence and its impact as well as the background of the offender. It seeks to denounce the criminal conduct and to deter the offender and other people from committing such offences. It seeks to rehabilitate the offender, to create a sense of responsibility in him and to make reparations for the offence. A fit sentence gives due weight to any mitigating circumstances and to any aggravating circumstances including those aggravating factors set out in the Criminal Code, such as abuse of authority.

[21] This is definitely not a case for an absolute discharge. While I am a very strong believer in the importance of discharges generally as part of the sentencing landscape, I would incline to think that cases involving the use of excessive force by police officers will rarely qualify for an absolute discharge. I am aware of a case decided by my brother Nadel J. in which a detainee spat in the face of a police officer who was especially vulnerable to communicable diseases, ironically as the officer was reciting the detainee's rights under the Charter of Rights. The officer instantaneously punched the detainee and then did two things that Sergeant Baxter did not do: first, he wrote in his notes what he had done; second, he reported himself to his sergeant. Without presuming to define the parameters of when an absolute discharge is appropriate, it would be hard to gainsay the appropriateness of an absolute discharge in that case, but there are at least a couple of degrees of separation between that case and this.

[22] This is also not a case in which real jail would be justified, not only because neither of the parties ask for it, but because the totality of the evidence, both about what happened and about the person who did it, does not bring real jail into the appropriate range of sentence. Accordingly, the question is whether the sentence should be a conditional discharge, a suspended sentence, a fine or a conditional sentence.

[23] The sentence I impose must send a message to Sergeant Baxter that what happened was not acceptable; that same message must go out to other officers that their power to use force, while it will be given substantial latitude by the courts, is not unrestrained. The Court of Appeal for this province has recently stated clearly in R. v. Forcillo, 2018 ONCA 402, that general deterrence and denunciation are of particular importance in cases involving police use of excessive force. The sentence must demonstrate to the public that the use of excessive force by the police will be taken seriously by the courts and that, all else being equal, a police officer will face a more severe consequence than an ordinary citizen who commits the same offence: see R. v. Schertzer, 2015 ONCA 259. As a general rule, the commission of an offence by a police officer should be treated more severely than the same offence by another person of otherwise identical background because the police officer's offence is a breach of a position of trust. That has been recognized in the cases (see, e.g. R. v. Cusack (1978), 41 C.C.C. (2d) 289). The Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, has made it clear that, "Courts must guard against the illegitimate use of power by the police against members of our society, given its grave consequences." (at paragraph 32).

[24] The fact that deterrence and denunciation are key elements of sentencing in cases involving the unlawful use of force by the police, however, is not by any means the same as saying that any particular form of sentence is called for in order to achieve those objectives. That is obvious from both a jurisprudential perspective and from what I might call an anecdotal one, although that anecdotal perspective is itself rooted in the case-law. With respect to the first consideration, for example, the Supreme Court's discussion of the relative merits of incarceration (or "real jail") vs. a conditional sentence (or "house arrest") in R. v. Proulx, 2000 SCC 5, makes it clear that there are no watertight compartments between different forms of sentence when it comes to satisfying the objectives of sentencing such as denunciation, general and specific deterrence, rehabilitation, reparations, etc. Put alternatively, jail does not have a monopoly on achieving the "harder" objectives of sentencing such as denunciation and deterrence. The Supreme Court in Proulx also recognizes that the efficacy of incarceration as a mechanism of general deterrence is based on a rather tenuous empirical basis and that elements of a sentence such as community service orders can have a deterrent effect (at paragraph 107).

[25] From an "anecdotal" perspective, I note that the cases in which either absolute or conditional discharges have been granted to police officers frequently refer specifically to the importance of denunciation and deterrence for offences of this nature and then proceed to grant discharges. This simply proves the prevalence of that which is obvious: while certain mechanisms of punishment may be more efficient at achieving particular objectives of sentencing (or may be perceived to be more efficient), there is almost always more than one way to accomplish a particular objective. The sole objective that can be accomplished in only one way is the objective of separating offenders from society in s. 718(c).

[26] It must always be kept in mind that Sergeant Baxter has the same right to be treated fairly and dispassionately as any other defendant standing before the court. Any assessment of his misconduct that does not take into account a long and unblemished history of public service and of community engagement would be at least as wrong as a sentence that downplayed the importance of police officers remaining in bounds when they use force. Just as the use of force by a person in authority is an aggravating factor under s. 718.2(a)(iii) of the Criminal Code, I must keep in mind that s. 718.2(e) of the Code directs that, "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders." A conditional sentence is a sentence of imprisonment.

[27] An essential element of the process of crafting a fit sentence requires that courts keep in mind that every case must be decided on its own facts. I have been referred to numerous authorities by both parties. Mr. Markson graciously refrained from taking me through all of his "favourite" decisions that he filed on sentencing, which was kind of him because there were more than three dozen of them, which I have since read. Mr. Perlin had just under a dozen authorities that he relied upon. I do not propose to go through all of them here, just as counsel did not go through all of them in their submissions. There will be infinite combinations and permutations of factors among the cases, including the circumstances in which force was used, the amount of force used, whether there was bodily harm and, if so, how much, the victim's degree of suffering, if any, any malicious conduct by the officer, any attempt to cover up what happened, whether or not there was a plea of guilty, whether or not there is any previous history of misconduct, the officer's life and career history, the impact of collateral consequences, etc. These are not all of the considerations by any means, but they demonstrate the complexity of the task and they demonstrate that while previous cases may be helpful, they are not likely to be determinative.

[28] By way of example, only, Mr. Markson pointed me to one of my own decisions in a sentencing of a police officer: R. v. Zarafonitis, 2013 ONCJ 570. That was a case in which the officer filed favourable materials on sentencing (albeit not as comprehensive as Mr. Markson's), and where the officer had pleaded guilty to assault causing bodily harm, unlike Mr. Baxter who had a trial. I refused a discharge and imposed a suspended sentence instead. That case superficially seems more favourable than Mr. Baxter's but a more detailed examination demonstrates that the injuries and suffering of the victim in that case were dramatically greater than Mr. Stirtzinger's. That other case was also a case in which the officer's focus on the victim and his use of a power of arrest for a trifling provincial offence committed by the victim, who was an onlooker at a melee involving more serious offences by other people, were suggestive of an attempt to intimidate the onlooker in order to ensure that the onlooker did not continue to photograph the police-citizen interaction. In short, that case involved much more serious injuries and more lasting consequences and was also reflective of a seemingly conscious attempt at intimidation of a citizen engaged in lawful conduct.

[29] I also note that some of the authorities relied upon by the Crown relate to offences by police officers that involved what I shall call a less situational abuse of authority. I have found Mr. Baxter guilty of the unlawful use of force causing bodily harm, but the context in which that offence occurred was a dynamic arrest situation to which Sergeant Baxter had to respond in the moment. While the use of force was unjustified, Sergeant Baxter had a legitimate law enforcement purpose in engaging Mr. Stirtzinger and clearly had reasonable grounds to arrest him. Indeed, if Sergeant Baxter had not taken steps to arrest Mr. Stirtzinger, he would have violated his oath of office. Cases such as R. v. Cook, 2010 ONSC 5016, and R. v. Schertzer et al., [2015] ONCA No. 2014, involve much more deliberate police misconduct, a multi-officer conspiracy to pervert justice in the Schertzer case. Constable Cook stole what he believed to be fifteen kilograms of cocaine from a controlled delivery that had been misplaced by the R.C.M.P. and an ensuing search also uncovered a batch of MP3 players that he had stolen from a police property seizure, as well as about a pound of marihuana found in his residence. Likewise, the authorities relating to police assaults on persons already detained in police custody involve criminality of a different order of magnitude than that involved here.

[30] As I have said already, it must also be kept in mind that while different sentencing objectives such as deterrence, denunciation, etc. will have different weight in different offences, there are multiple ways to accomplish deterrence, etc. Imprisonment, including the conditional sentence, does not have a monopoly on achieving deterrence or denunciation. Ultimately, it must be kept in mind that proportionality of sentence to the offender and his offence is the Holy Grail of all sentencing proceedings: see R. v. Lacasse, 2015 SCC 64.

[31] I mentioned at the outset that Mr. Markson seeks an absolute or a conditional discharge. Mr. Perlin argues that such an outcome is not supported by the cases. Clearly, however, there are many cases in which police officers found guilty of offences have received discharges: Mr. Markson has filed twenty-six authorities in which absolute or conditional discharges were granted, some quite dated, others more recent. Mr. Perlin disputes the force of those decisions insofar as he says they do not reflect the principles set out by the Court of Appeal in R. v. Feeney, 2008 ONCA 756, and R. v. Byrne, 2009 ONCA 134. Mr. Perlin even disputes the force of one of Mr. Markson's authorities, the Court of Appeal decision in R. v. Rice, 2015 ONCA 478, which granted a discharge to a police officer found guilty of using excessive force by kicking a prone detainee in an apartment building stairwell. Mr. Perlin says that the decision is unhelpful because the imposition of a discharge by the Court of Appeal in that case was consented to by the Crown and because the decision does not refer to Byrne or Feeney. While I would not hesitate to find that the Court of Appeal had decided an issue per incuriam in an appropriate case where such a conclusion was inescapable or obvious, one should be loath to reach such a conclusion on such a meagre basis as that presented here. There is an entirely plausible alternative explanation for why counsel from the Crown Law Office would agree to a discharge in a police assault case and three judges of the Court of Appeal would endorse that submission, namely that the facts in Byrne and Feeney were materially different from the facts in Rice (as they are different from the facts here) and because, sentencing being always an individual matter, the comments in Byrne and Feeney, which do not address the availability of discharges either specifically or theoretically, are not at all determinative of whether or not a discharge may at times be appropriate in a case involving the police use of excessive force. I note that the signature decision on the general availability of discharges, namely the decision of the British Columbia Court of Appeal in R. v. Fallowfield (1973), 13 C.C.C. (2d) 450 at pp. 454-455, specifically notes that in considering whether a discharge is contrary to the public interest, the need for general deterrence is not a bar to a discharge.

[32] Section 730 of the Criminal Code says that a discharge is available for this offence if it is in the defendant's interest and if it is not contrary to the public interest. Clearly, it would be very much in Sergeant Baxter's interests to receive a discharge. The live issue is whether or not a discharge would be contrary to the public interest. It is, in my view, important that one not fixate entirely over the label applied to a sentence, i.e. "discharge" vs. "conviction" in determining whether or not a sentence would be consonant with the principles of sentencing applicable to that offence and whether or not it would be contrary to the public interest. Just as a non-custodial sentence generally may very well have deterrent value, so may a discharge. Often of greater importance than the label is the substance of the sentence, such as the conditions imposed as part of the sentence. In fact, a properly crafted discharge might well have a more deterrent, denunciatory and punitive effect than a suspended sentence or even a conditional sentence with few conditions, all the while providing rehabilitative and reparative elements. This is an area in which form should not trump substance. It should be clear from these comments that I reject the Crown's contentions that: (a) a discharge cannot denounce or deter; (b) that a discharge trivializes conduct; and, (c) that a discharge is an absence of legal consequences.

Applying the Sentencing Considerations to the Present Case

[33] There was a point in the evidence where Sergeant Baxter referred to "grounding" as his "go-to" means of bringing a non-compliant arrestee under control. The trial was decided not on the issue of whether or not grounding was an appropriate degree of force to use in the circumstances, but rather in light of my certainty that the Crown had demonstrated beyond a reasonable doubt that Mr. Baxter's justification for any use of force was untrue and that the Crown had proved beyond a reasonable doubt that any use of force was unjustified, even giving appropriate latitude to police officers making on-the-spot decisions in dynamic situations. Given the risks inherent in grounding, however, the notion of it being anyone's "go-to" means of exercising control is not reassuring, at a minimum to the extent that it could suggest a failure to identify a reasonable use of force option for each situation.

[34] It is not necessarily part of my function to determine precisely why Sergeant Baxter did what he did, although if there were evidence of an odious motive it would aggravate the offence. It is certainly not because he saw Mr. Stirtzinger reaching for a weapon. It would be understandable that Sergeant Baxter might be annoyed at the trail of random obnoxiousness Mr. Stirtzinger had been weaving through the neighbourhood that day as he had undoubtedly done often in the past. It may be that at the end of a long shift, Mr. Baxter was tired and inclined to just get the arrest over with. I have absolutely no basis to conclude that Sergeant Baxter's conduct was rooted in malice or payback; nothing in the events of that day or in the evidence about Mr. Baxter's life and career comes close to justifying such a conclusion.

[35] There is a danger in many positions, especially dangerous in positions of authority, that mere habit might cause us to lose sight of the inherent humanity of those with whom we deal, no matter what they have done or how they present themselves. This is a danger that judges and police officers must perpetually be alive to. I can think of no better expression of that danger than the words of G.K. Chesterton:

The horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policeman, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.

These are words that should be imprinted on the consciousness of every person who wields significant authority over any other person. They should be on the curriculum of every police college, law school and judicial training institute. They should be on display in every police division and every courthouse. We should all aspire never to lose sight of them. But we are all human, so from time to time we shall do precisely that.

[36] Allow me to be clear. Sergeant Baxter's use of force against the eternally annoying Mr. Stirtzinger was unlawful. As I have just said, however, that use of force was not malicious and most likely was rooted in nothing more than impatience at the end of a long shift coupled with frustration at this most recent imprint of Mr. Stirtzinger's behaviour on the people in the neighbourhood whom Sergeant Stirtzinger was sworn to protect, but it was still unlawful. Society rightfully expects trained and experienced police officers like Sergeant Baxter to control their frustrations, but when they fail to do so, society must recognize that police officers are human rather than superhuman. Mr. Markson is on solid ground when he submits that what happened in August, 2016 is not an accurate reflection of the true Michael Baxter. His conduct that day was out of character and his true character is more accurately reflected in the pro-social and public-spirited way in which he has lived the rest of his life.

[37] Allow me also to be clear that how Sergeant Baxter wrote up his notes and how he dealt with the S.I.U. were not his finest hour. He exacerbated his "in the moment" error behind the plaza by the way he characterized what happened in his notes and S.I.U. interview. That was not a trivial additional feature of this case. Indeed, as between the two elements of the case, "what happened after" is arguably more concerning than what happened behind the plaza. The conditions of the sentence I impose reflect that failing on his part.

[38] The cardinal principle of proportionality in sentencing leads me to the following conclusions about the appropriate penalty for a short period in Mr. Baxter's life when he diverged from the way in which he has lived the other fifteen thousand days of his life. In the period leading up to this morning he has undoubtedly suffered significant stress and some degree of financial loss, which are relevant collateral consequences. He has suffered significant personal embarrassment. In noting that fact, I stress that this is not a case of a person who has been living a lie in how he projects himself to the world as pro-social and has been uncovered, but rather this is a case of a person with a genuinely pro-social and public-spirited lifestyle who has gone momentarily astray. For an upstanding person, one's good name, "is the immediate jewel of their souls." I have watched Sergeant Baxter through the course of these proceedings and I believe that the experience has affected him deeply. Certainly by this point this is not a case in which the need for specific deterrence plays a significant role. The impact of these proceedings on him is not something that would likely escape the attention of his fellow officers in a medium-sized police service such as the NRPS, which goes a significant way towards achieving the purposes of general deterrence. It is in everyone's interest – his, his police service's and the community's – that Sergeant Baxter pay his penalty, put this matter behind him and return to serving the community he has served for nineteen years.

[39] There is always a concern in sentencing police officers that the public, or some members of the public, might form the view that police officers get special treatment from the courts when it comes to sentencing. Although I do not agree with the outcomes in all of the precedents that Mr. Markson put before me, that difference of opinion is not unusual; judges often have widely divergent views on sentencing. I do not believe, however, that preferential treatment in sentencing is a genuine concern. As a form of self-test, however, I have gone through a review of decisions of my own in which discharges have been sought for non-police officers for offences involving a breach of trust, including where the offence has involved violence, where there has been a trial rather than a guilty plea and so on. No individual case is four-square with the present case; cases seldom are identical. What has to be kept in mind is that while there may be certain aggravating factors in sentencing police officers for certain offences that are not in play for members of the public, a police officer cannot be denied a fair and balanced sentencing outcome simply because he is a police officer or because some members of the public may be dissatisfied unless the sentence imposed is particularly punitive. Meaningful assessments of the appropriateness of an individual sentence must always be informed assessments, taking into account all of the factors of the offence and offender, for good and bad.

[40] I am satisfied that deterrence, denunciation, rehabilitation, reparations and the creation of a sense of responsibility on Mr. Baxter's part can all be accomplished by the following sentence:

Sentence

a. Mr. Baxter will receive a conditional discharge.

b. He shall be on probation for eighteen months.

c. He shall report to probation today and thereafter until he satisfies his probation officer that he has completed his community service.

d. He shall perform two hundred hours of community service at a placement approved of by his probation officer in advance. That community service shall not be in any placement related to adult or children's athletics or policing.

e. He shall sign releases to allow probation to monitor his compliance.

f. The seriousness of this case, including "what happened after" makes it an appropriate case to impose an increased victim surcharge, in the amount of one-thousand dollars. Mr. Baxter will have one year in which to pay the victim surcharge.

g. Mr. Baxter shall provide a sample of his DNA for inclusion in the DNA data bank. This offence is a primary designated offence. Even as a first offender with a favourable background, there is no basis before me upon which I could conclude that the taking of a DNA sample would have a grossly disproportionate impact on Mr. Baxter's privacy interests relative to the public interests in the databank.

[41] I am indebted to all counsel for the quality and tenor of their submissions.

Released: 29 August 2018

Fergus O'Donnell J.