Court Information

Ontario Court of Justice

Date: November 26, 2018

Court File No.: Central East - Newmarket 4911-998-18-09643-01

Parties

Between:

Her Majesty the Queen

— AND —

Vittorio Dominelli

Judicial Officer and Counsel

Before: Justice M.E. Misener

Heard on: November 9, 2018

Reasons for Sentence released on: November 26, 2018

Counsel:

• P. Perlmutter — counsel for the Crown
• P. Brauti and K. Ginn — counsel for the defendant Vittorio Dominelli

Judgment

MISENER J.:

[1] Guilty Plea

[1] Mr. Dominelli pleaded guilty to obstructing justice by destroying or converting evidence to his own use. The Crown did not proceed on the offence of breach of trust by a public officer on the basis that it would be taken into account in this sentencing pursuant to R. v. Garcia and Silva.

Summary of the Facts

[2] On January 27, 2018, Vittorio Dominelli was a member of the Toronto Police Service (TPS) assisting in the execution of a Search Warrant at a marijuana dispensary. He was in plainclothes and armed with a firearm.

[3] Among the evidence seized at the dispensary were more than 100 chocolate bars infused with cannabis oil. The police unwrapped the bars and placed them in a bin to be a bulk exhibit.

[4] After the search was completed, there was a discussion about getting some food before the officers commenced their next assignment. Mr. Dominelli volunteered to go down the street to buy pizza. As he was leaving the dispensary, he noticed a chocolate bar that had been overlooked in the search. It was laying on the floor among the wrappers. He sifted through the wrappers and found two more bars. Rather than submit the three bars into evidence he put them in his pocket.

[5] Mr. Dominelli and his partner went to the pizza place. While waiting for the pizza, Mr. Dominelli told his partner he had taken the bars and intended to throw them away. His partner pointed out the risk that someone would take the bars from the garbage and consume them and so he left them in his pocket.

[6] At approximately 11 p.m., Mr. Dominelli and his partner commenced their next duty which was to conduct surveillance on an after-hours club in the Vaughan and Oakwood area. Once they were settled at their observation point, Mr. Dominelli raised the issue of where to dispose of the bars. They began discussing marijuana and both said they had never tried it. Mr. Dominelli's partner said to him: "I'm down if you are."

[7] Mr. Dominelli expected that he would experience a minor mellow feeling that would make him feel slightly relaxed. He did not expect that his judgment would be impaired to any significant degree. In that frame of mind he took up the dare, broke off a piece of the chocolate bar and ate it. His partner did the same thing. He and his partner consumed an entire chocolate bar despite the following clear warnings on the label: "Do not use without a physician's authorized recommendation"; "For adult use by qualified patients"; "Begin by using a small portion and wait 40 minutes…Titrate dosage in small portions to avoid overdoing it. Stay hydrated and only use medicine safely in a controlled setting."

[8] Mr. Dominelli felt no effects for about 15 to 20 minutes. Suddenly his heart was pounding so much that he felt it was going to come out of his mouth. He was sweating heavily and believed he would pass out. He worried that the bars were laced with some other drug which could be fatal. Panicking, he asked his partner to call for help on the police radio. She refused. At approximately 1 a.m. he took the radio from her and made a call for help. It was a 10-33 Officer needs Assistance call. He wandered outside in a haze.

[9] Officers raced to the scene. One of those responding officers slipped on the ice. She suffered a serious concussion and remains unable to work. She continues to have significant difficulties with speech, vision and balance.

[10] Seven persons were charged as a result of the search of the dispensary. All of the charges were withdrawn as a result of the theft of evidence.

[11] Mr. Dominelli resigned from the Toronto Police Service.

Mr. Dominelli's Background

[12] Mr. Dominelli was born and raised in Toronto. His father is a retired Toronto police officer. Mr. Dominelli attended York University for two years before deciding to follow in his father's footsteps. He joined the TPS in 2005. He is married and the devoted father of three girls.

[13] By all accounts, until the night of January 27, 2018, Mr. Dominelli was a dedicated police officer who was rising through the ranks. His performance evaluations demonstrated steady improvement during his early years until he was consistently performing above expectations. His promise to be an exceptional officer was revealed in his first year of policing when he was recommended for an award by his supervising officers for dealing compassionately and effectively with the victim of a brutal sexual assault. He received many recommendations for commendations throughout his career. His superior officers consistently recognized his commitment to the core values of honesty, integrity, fairness, respect, reliability, teamwork and a positive attitude. On at least two occasions members of the community who had dealings with Mr. Dominelli took the time to write to his supervisor to commend him for his kindness, integrity and professionalism. In September 2013 one member of the public wrote: "If this officer is representative of the police department in Toronto then we are truly lucky."

[14] Mr. Dominelli displayed the same good character in his private life. The defence filed 14 glowing letters of reference from family and friends attesting to Mr. Dominelli's integrity and kindness. In addition, I received letters from two highly-respected retired police sergeants who had direct supervision of Mr. Dominelli at 13 Division. Both described Mr. Dominelli as a reliable and trustworthy officer who had a very promising career ahead of him. Both expressed complete shock at his involvement in this incident.

The Position of the Parties

[15] Mr. Dominelli's counsel, Mr. Brauti, urges me to grant a conditional discharge submitting that a discharge is clearly in Mr. Dominelli's best interest. Mr. Brauti points out that it is going to be difficult enough for Mr. Dominelli to find employment and a criminal record will foreclose many opportunities. Mr. Brauti submits that given the consequences that his client has suffered in losing his policing career and being publicly humiliated, a discharge is not contrary to the public interest.

[16] On behalf of the Crown, Mr. Perlmutter submits that a jail sentence is required where the police violate the public trust by tampering with evidence and certainly in this case where the officer not only stole evidence but got himself into a state of intoxication which endangered the public and caused actual lasting injury to a colleague. He submits that the mitigating features in this case entitle Mr. Dominelli to serve his jail sentence in the community but to no more leniency than that.

Aggravating and Mitigating Factors

[17] A proper sentence is tailored to reflect the seriousness of the offence and the background and circumstances of the offender. I must consider all of the aggravating and mitigating factors.

Aggravating Factors

[18] The most aggravating feature of Mr. Dominelli's conduct is the egregious breach of trust.

[19] Abuse of trust is recognized as an aggravating factor in Section 718.2 of the Code.

[20] In fact, Mr. Dominelli committed multiple breaches of trust.

[21] He breached the trust of his position in the administration of justice: he was inside the dispensary as a result of judicial authorization. Mr. Dominelli knew that he was not authorized to do anything in respect of the property found inside the premises other than to seize and hold it as evidence in a lawful investigation.

[22] He breached the trust of his employer the Toronto Police Service by stealing in the course of his employment.

[23] He breached the trust of his fellow officers whose reputations were tarnished by his evidence tampering.

[24] He breached the trust of his colleagues by creating an officer in need of assistance call with his reckless actions. Those officers, who rushed to assist their colleague, putting themselves and the public at risk, believed the peril arose in the proper course of duty and not as a result of a reckless decision to take up a dare.

[25] He breached the trust of the public by violating the law while on duty and armed with a firearm. Police officers are granted significant powers, including the power to search private premises under judicial authorization. It is understood that they will exercise those powers with honesty and integrity. They are entrusted with firearms for their protection on the understanding that they will remain sober while armed with lethal force.

[26] The danger Mr. Dominelli caused is also an aggravating factor.

[27] In his statement Mr. Dominelli describes himself after ingesting the cannabis as "wandering outside in a haze." That is the state he put himself in while armed with a loaded handgun. The potential for serious harm to innocent persons was significant and obvious.

[28] Mr. Dominelli created further danger to the public and his colleagues by getting himself into such a state that he used the radio call for an officer in need of assistance. He knew that first responders would rush to the scene putting themselves and the public safety at risk. But he did not reveal that he had consumed cannabis edibles until help was on scene.

[29] The consequences of Mr. Dominelli's actions are very serious aggravating factors.

[30] The immediate result of his evidence tampering was that criminal charges against seven persons, charges which ought to have been decided on their merits, were withdrawn.

[31] The ramifications of his evidence tampering go well beyond the immediate case. When a police officer tampers with evidence he undermines the public trust in the integrity of investigations and prosecutions. He lends credence to allegations of evidence tampering, undermining the repute of the justice system.

[32] His reckless consumption of the cannabis edibles ultimately resulted in a colleague suffering serious injuries as she rushed to assist him.

Mitigating Factors

[33] On the other side of the balance are the mitigating factors.

[34] Mr. Dominelli's good character in both his personal and his professional life are significant mitigating factors.

[35] He served the public as a dedicated police officer for 13 years. Not only is his record unblemished, it is highlighted with accolades from his supervising officers and from members of the public. In his personal life, Mr. Dominelli is a reliable, honest, dedicated family man.

[36] He has a very supportive network of family and friends.

[37] Mr. Dominelli is genuinely remorseful and he has taken full responsibility for his conduct. He resigned from the police service, giving up a very rewarding career and very significant future earnings and benefits. It is clear to me that Mr. Dominelli took great pride in being a police officer and so the loss of his career has affected him profoundly. His decision to resign rather than fight for his career has saved considerable public resources. His guilty plea has also saved judicial resources. He is entitled to significant credit for stepping up, admitting his misconduct and accepting the consequences.

[38] He is deeply remorseful. He has apologized to the Toronto Police Service for failing to uphold its values and to his colleagues for discrediting them. He has apologized to the first responders and particularly to his colleague who was injured. He has apologized to his family and friends. He has apologized to the Court for the harm he has caused to the administration of justice. He has apologized to the community and has already performed community service hours.

[39] The social cost to Mr. Dominelli has been enormous. The fact that a police officer stole cannabis edibles and consumed them to the point of intoxication while on duty has drawn international attention.

[40] The psychological and financial stress on his family has been immense.

[41] The absence of any corrupt motive is very significant. The conduct here was reckless, immature and impulsive. Mr. Dominelli did not use his position as a police officer to forward his own interests or the interests of others. It appears that his only motive was to fulfill his curiosity.

[42] And while he knew he was ingesting an intoxicant while on duty and armed, he did not expect the effect to be anything more than a mild mellowing one.

[43] The absence of planning and deliberation are also mitigating factors: both the decision to take the cannabis edibles and the decision to consume them were impulsive.

Applicable Sentencing Principles

[44] The overriding principle in every case is proportionality. The sentence must be individualized to reflect the seriousness of the offence and the background and degree of responsibility of the offender.

[45] The primary sentencing principles when a police officer attempts to obstruct justice and violates his position of trust are denunciation and deterrence. The sentence must express society's condemnation for Mr. Dominelli's egregious breach of the public trust. It must deter police officers from tampering with evidence and endangering the public.

[46] I am satisfied that specific deterrence and rehabilitation are not considerations: This incident was entirely out of character and its consequences on Mr. Dominelli have been profound.

[47] The principle of restraint requires me to impose the least onerous sentence on Mr. Dominelli that will meet the requirements of denunciation and deterrence. Parity is also an important consideration which requires me to consider sentences imposed in similar cases.

Case Law

[48] Mr. Brauti provided me with a number of cases where police officers have been granted discharges after committing offences.

[49] As I indicated during submissions, I do not find cases where officers committed criminal offences such as fabricating expense claims or stealing petty cash to be of much assistance. While every dishonest act undermines the integrity of the police force, such offences are quite distinct from offences like evidence tampering which interfere with the proper administration of justice. Evidence tampering, even of a minor nature, strikes at the heart of the justice system by undermining the integrity of the investigation and prosecution of criminal offences.

[50] Thus Mr. Brauti helpfully focussed his submissions on cases involving officers interfering with the administration of justice.

[51] In R. v. Murray, [2018] O.J. No. 3083, a police Sergeant stole drugs being held as evidence from the property locker he was in charge of securing. He pleaded guilty to a breach of trust in connection with his duties. He was granted a conditional discharge and placed on probation for three years.

[52] In R. v. Markham (2012 unreported) a police officer revealed confidential information to a civilian including the names of outstanding parties, potentially jeopardizing officer safety and interfering with the integrity of an investigation. The information related to the arrest of a person who had ties to organized crime although there was no evidence that the officer was aware of those connections. He was granted a conditional discharge.

[53] The decision in R. v. Vongkhamphou (2012 unreported) is also instructive. In that case, a police officer pleaded guilty to attempting to obstruct justice for removing evidence from a police locker and destroying it in order to frustrate the prosecution of a colleague. He received a suspended sentence and probation. Unlike Mr. Dominelli, the very purpose of his decision to steal evidence was to defeat a prosecution and unlike Mr. Dominelli's impulsive action, his theft was carefully planned.

[54] The Crown relied on appellate authority from across Canada to the effect that police officers who violate the law in the course of their duties should be dealt with severely.

[55] In R. v. Schertzer, 2015 ONCA 259, the Ontario Court of Appeal increased the sentences imposed on officers who attempted to obstruct justice and committed perjury. They were found to have conducted a search before the warrant arrived, falsified their notes and lied under oath to cover up their warrantless search. The Court overturned the sentence of 45 days and held that a sentence of three years was appropriate. In doing so, the Court approved of the following dicta from the Nova Scotia Court of Appeal in R. v. Cusack (1978), 41 C.C.C. (2d) 289:

…The commission of offences by police officers has been considered on numerous occasions by the Courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime, because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration.

[56] The Court observed that perjury and obstruction of justice strike at the core of the criminal justice system and held that "(w)hen the perpetrators of the crime are police officers sworn to uphold the law, the objective of denunciation has heightened significance. Police officers owe a special duty to be faithful to the justice system."

[57] In R. v. Hansen, 2018 ONCA 46, the Ontario Court of Appeal held:

The offence of perjury, for that matter, the crime of attempting to obstruct justice, strike at the very soul of the judicial system. Each rents the fibre of the intricate scheme that we as a society have designed to determine whether the guilt of one accused of crime has been proven beyond a reasonable doubt. Each offence is easy to commit. Both are hard to prove. Those found to have committed either must expect severe punishment.

Police officers occupy a special position of trust in the community. It is all the more so in the criminal justice system. As justice system participants, they owe a duty to the public to uphold the values of the criminal justice system. They have a duty to investigate crime in accordance with the law.

[58] In that case the Court upheld a five year sentence imposed on a police officer who planted evidence and lied under oath to obtain a search warrant.

[59] In R. v. LeBlanc, 2003 NBCA 75, the New Brunswick Court of Appeal observed that "police officers have opportunities practically on a daily basis to cross the line and engage in prohibited conduct. The public trust them to resist the temptation and relies upon the courts to deal firmly with those who stray." In that case the Court overturned a conditional discharge granted to a police officer who, when responding to a fire in progress, rummaged through the homeowners belongings and stole property including cash. The Court found that a discharge was woefully inadequate to denounce the breach of trust, substituting a conviction and a three month jail term.

[60] In the Cusack case, the Nova Scotia Court of Appeal emphasized that police officers who fail to exercise their powers with scrupulous propriety will not only face dismissal from their position of trust but also the imposition of substantial punishment. In that case an officer removed money from the wallet of an elderly gentleman while obtaining his driver's licence during a traffic stop. The Court raised the jail sentence of one day to nine months.

[61] In R. v. Hunt, [1978] B.C.J. No. 92, the British Columbia Court of Appeal held that a discharge was a wholly inadequate sentence in a case where a Sergeant stole $11,000 from an exhibits envelope and invested it in the stock market. The officer's intention was to return the original funds after realizing a gain. He was dismissed from the force. The Court of Appeal substituted a sentence of 1 year incarceration and characterized that sentence as very lenient.

[62] In addition there are a number of lower court decisions where Courts have refused to grant discharges on the basis that police officers who violate the trust reposed in them by the public must be held to a very high standard to protect the rule of law.

Is a Discharge Appropriate?

[63] The test for granting a discharge is that it must be in the best interest of the accused and it must not be contrary to the public interest. As Mr. Brauti points out, if a discharge is available for a particular offence, as it is here, it is not limited to technical or trivial violations.

[64] It is beyond dispute that a discharge is in Mr. Dominelli's interest: he has lost his job. He needs to support himself and his family. A conviction will significantly handicap his efforts to find employment. It will be a complete impediment to any employment in the security industry.

[65] The issue is whether a discharge is contrary to the public interest.

[66] The defence submits that a clear message has already been sent that police misconduct which undermines the integrity of the justice system and endangers public safety will not be tolerated.

[67] The extra-judicial consequences have been severe. Mr. Dominelli has lost his career and been humiliated. The unforgiving nature of the internet means that he will bear the shame of his actions for the rest of his life.

[68] Furthermore, it is important that the sentence reflect Mr. Dominelli's response in the aftermath of the incident. He took complete responsibility for his actions from the outset by resigning from the police force and pleading guilty. He is entitled to very significant credit for his genuine remorse.

[69] The sentence should also reflect his 13 years of dedicated police service and his otherwise excellent character.

[70] Most significantly Mr. Dominelli did not act for a nefarious purpose. His decisions to take the evidence and to ingest it were both impetuous and immature. He is not a corrupt police officer.

[71] As I have indicated there are cases, such as R. v. Murray and R. v. Markham, in which Courts have found that the stigma of a criminal record is not necessary to denounce improper police conduct, even when it involves interfering with criminal investigations.

[72] The evidence tampering in R. v. Murray was much more serious than in this case. Murray removed 44 oxycodone pills for his own use from a drug exhibit and substituted other pills. While he pleaded guilty to only one incident, his actions called into question the integrity of every drug seizure that occurred while he was the officer in charge of the drug vault. Nevertheless, he was granted a conditional discharge.

[73] I have reflected on Mr. Brauti's appeal for me to be compassionate. I am aware of the harsh consequences a conviction will have on Mr. Dominelli and his family who have already suffered greatly. I understand that Mr. Dominelli's decision to steal the evidence was impulsive.

[74] However I would not be carrying out my duty to protect the rule of law if I were to grant a discharge to an officer who tampered with evidence in a criminal investigation.

[75] A discharge is contrary to the public interest.

[76] I can distinguish the decision to grant a discharge in R. v. Murray on the basis that the officer was driven by an addiction as a result of medically-prescribed pain medication and PTSD suffered as a result of his duties. The judge in Murray found that the combination of addiction and mental health issues made his case so exceptional that he was entitled to the most lenient disposition available. The Court of Appeal recognized in R. v. Lensen, [1994] O.J. No. 359, that there may be exceptional mitigating circumstances which call for leniency in sentencing police misconduct. Importantly, in Lensen the Court of Appeal noted that the officer, who had significant addiction issues, did not interfere with evidence in ongoing investigations: the property stolen was marked for destruction. Furthermore, while R. v. Murray is distinguishable, it is not binding on me and I disagree with it. In my view the conduct of Sgt. Murray, who was the officer in charge of the property room from which he stole evidence, was such a profound violation of the public trust that a discharge was not appropriate. Similarly, I disagree with the decision in R. v. Markham to grant a discharge to an officer who revealed confidential information from an ongoing investigation involving organized crime. Both officers seriously interfered with the justice system in a manner which undermines the rule of law.

[77] The Ontario Court of Appeal has clearly stated that, absent very exceptional circumstances, officers who commit breaches of trust in the course of their duties should receive lengthy sentences of imprisonment. This direction echoes the position of appellate Courts across the country.

[78] It appears that Mr. Dominelli was motivated by reckless curiosity. Regardless of the motive, the effect of tampering with evidence during the execution of a search warrant is to tarnish the reputation of the criminal justice system.

[79] Not only did Mr. Dominelli steal evidence, he endangered the public with his self-induced intoxication. He was wandering outside in a haze while on duty and armed with a firearm. The obvious risk of danger in this conduct was realized when another officer was seriously injured.

[80] I must register a conviction.

[81] I have considered whether a period of probation would satisfy the sentencing principles. My comments in respect of the inadequacy of a discharge apply to a suspended sentence. Such sentences are inadequate to express the seriousness of the conduct here.

[82] The objective gravity of a police officer tampering with evidence during the execution of a search warrant on its own requires a sentence of imprisonment. Here the officer went on to commit a further breach of the public trust by becoming intoxicated while armed and on duty, endangering the public in circumstances which ultimately led to a colleague suffering serious harm.

[83] Mr. Dominelli's conduct that night was so contrary to his duties to uphold the law and to protect the public that it must be sternly denounced. Any sanction less than a sentence of imprisonment is inadequate to protect the rule of law from the corrosive effect of such conduct.

[84] The principle of restraint requires me to impose the minimum sanction that will satisfy the overriding principles of denunciation and general deterrence. In my view that sentence is a conditional sentence of imprisonment. That sentence takes into account Mr. Dominelli's otherwise excellent character and the mature and responsible manner in which he has conducted himself since this out-of-character incident occurred.[1]

Released: November 26, 2018

Signed: Justice M.E. Misener

[1] After hearing submissions a conditional sentence of nine months with house arrest for the first six months was imposed.