Ontario Court of Justice

Date: November 12, 2019

Central East Region (Lindsay, Ontario)

Between:

HER MAJESTY THE QUEEN

— AND —

JEFF BURKE

Before: Justice F. Javed

Heard on: May 27, August 9, 2019

Reasons for Sentence rendered on: November 12, 2019

Counsel:

• D. Moull — counsel for the Crown
• H. Black — counsel for Mr. Burke

F. Javed J.:

I. OVERVIEW

[1] Jeff Burke is a police officer employed with the City of Kawartha Lakes Police Service ("KLPS"). He was a respected member of his community, celebrated for his qualities as a father, a police officer and community engager. In 2003, Mr. Burke swore an oath to uphold the laws of his community. Only seven years later, he was selected to become the lone drug officer – in a community ravaged by drug trafficking and addiction. Policing is by no means an easy job. There are occupational hazards associated with policing, which requires police officers to show resolve in the face of challenging circumstances. In 2014, Officer Burke's resolve began to break when he was exposed to a series of traumatic events. He was diagnosed with post-traumatic stress disorder (PTSD) and became depressed. Doctors prescribed him opiates to help him cope with the trauma. When the opiates weren't enough, Officer Burke took matters into his own hands and turned to cocaine. Officer Burke's resolve finally broke when he stole drugs from an exhibit locker. Eight prosecutions were impacted. In a cruel twist of fate, Officer Burke broke the trust of his community by stealing the drugs he was helping to get off the street – only to fuel his own addiction.

[2] Officer Burke was charged with several criminal offences but pled guilty to one charge of breach of trust contrary to s.122 of the Criminal Code. The Crown proceeded by indictment. Crown counsel argues that Officer Burke's guilty plea and drug addiction are an exceptional reason that justify departing from the norm which would require the court to impose a lengthy jail sentence behind bars. The Crown argues that Officer Burke has started his path towards rehabilitation but the seriousness of his crime still merits a jail sentence – one that he can serve in the community as a conditional sentence order (CSO). Mr. Black on behalf of Mr. Burke disagrees that jail is necessary arguing that the unique circumstances of this case are exceptional, such that not even a criminal conviction is necessary. Mr. Black says a conditional discharge followed by a period of probation would satisfy the ends of justice. Alternatively, if a criminal conviction is necessary, it does not have to involve a jail sentence in the community. It can be achieved by suspending the passing of sentence and placing Officer Burke on probation.

[3] These reasons for sentence will address the above arguments framed as the following legal issues:

(i) Is a conditional discharge a fit sentence pursuant to s.730 of the Criminal Code?

(ii) If a conditional discharge is unfit, would a suspended sentence with a period of probation be an appropriate sentence? In other words, is a conviction as opposed to a jail sentence a proportional sentence in light of Officer Burke's circumstances and the circumstances of this case?

(iii) If a jail sentence is warranted, would a jail sentence in the community (CSO) for the length of 12-15 months be consistent with the purpose principles of sentencing under s.742.1 of the Criminal Code?

[4] For reasons that follow, I have concluded that an individualized sentence which is proportional to both the personal circumstances of Officer Burke and proportional to the gravity of his criminal conduct requires the court to impose a jail sentence. However, I agree with Crown counsel that Officer Burke does not have to be separated from the community to achieve these objectives. Accordingly, I am satisfied that a CSO is a fit sentence in this case. These reasons will explain why I gave serious consideration to Mr. Black's careful submissions for a discharge or a suspended sentence but concluded that both dispositions would be manifestly unfit. I understand that these reasons speak not only to Officer Burke but also to a wider community including his police peers, his family and friends and ultimately a police discipline tribunal. At the end of these reasons, I will invite submissions from both parties as to the optional conditions in the CSO as well as any exceptions that might be appropriate in the circumstances.

II. THE CIRCUMSTANCES OF THE OFFENCE

A. The Sentencing Record

[5] The record upon which Officer Burke is to be sentenced included the factual circumstances of the offence, which was read into the record by Crown counsel and accepted by Officer Burke. In addition to the facts underlying the breach of trust offence, the Crown also relied on additional facts pursuant to the principle in R. v. Garcia and Silva, [1970] 3 CCC 124. The defence filed a compendium titled "Materials Relied Upon by Jeff Burke" as Exhibit 1(A). This included 33 tabs and involved background information, medical documents, character references and details related to the underlying events which the defence says lead to the diagnosis of PTSD and ultimately the opiate and drug addiction. Exhibit 1B is a collection of character letters.

[6] Crown counsel does not dispute that Officer Burke was and remains diagnosed with PTSD, but instead qualified some of the circumstances relating to the triggering events which touch upon the conduct of other police officers and in particular any response by the police brass. I will discuss this in greater detail below. As an aside, the sentencing hearing almost became bogged down after Crown counsel advised of their intention to call viva voce evidence to rebut some of the claims that were being advanced by Officer Burke. Ultimately, the parties agreed not to call oral evidence and simply proceeded on the strength of their submissions. I mention this only because as a matter of law I must sentence Officer Burke based on proven facts. It is trite that the Crown must prove aggravating facts beyond a reasonable doubt whereas the defence bears the onus of proving a mitigating fact on a balance of probabilities. See R. v. Gardiner (1982), 68 C.C.C. (2d) 477 (S.C.C.) at 513-516; R. v. Ferguson (2008), 2008 SCC 6, 228 C.C.C. (3d) 385 (S.C.C.) at para. 18; R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 (Ont. C.A.) at paras. 17-25. This is important because the parties are asking the court to draw different inferences from the sentencing record.

[7] The defence did not request a pre-sentence report but instead, provided a thorough and chronological background of Officer Burke's life and the events that lead to his drug addiction. Again, the defence stresses that the PTSD diagnosis was the catalyst underlying the criminal offence in this case. This is important context to understand the criminal conduct.

B. The Policing Background

[8] Officer Burke began his policing career with the Durham Regional Police Service from 2003 to 2005. In 2005, he joined the Kawartha Lakes Police Service in order to be closer to home. From 2005 to 2010 he was employed with the KLPS in uniform duties. During this time, Officer Burke accompanied the drug officer in order to train to become a drug investigator.

[9] From 2010 to 2015, Officer Burke was selected as the sole drug officer in the KLPS drug unit. During this time, Officer Burke was exposed to two traumatic events. The first was in 2011 when Officer Burke was executing a search warrant where he was struck in the head with a machete. After surviving that attack, he was prescribed prescription medication and returned to work on the drug unit. A second incident involved witnessing a police colleague being shot during the execution of a search warrant in which he was the lead investigator. Officer Burke promptly returned to work on the drug unit. At this point, he was diagnosed with PTSD and prescribed medication aimed at reducing his anxiety and depression.

[10] In 2016, Officer Burke was transferred to the Major Crime Unit of the KLPS. During the same time, he was prescribed opioids for a routine dental procedure, which he combined with his PTSD medication. He continued to work including being a lead investigator on a notorious homicide investigation.

C. The Breach of Trust Offence(s)

[11] In December 2016, Officer Burke was assigned to investigate an anonymous tip to the KLPS that a person was tampering with narcotics from a local pharmacy. This investigation spanned a few months. As he later acknowledged, Officer Burke was siphoning drugs (hydromorphone) from this investigation to feed his opioid addiction.

[12] On December 23, 2017, while on a medical leave, Officer Burke attended at the police station to visit his colleagues and offer well wishes for the holidays. PC St-Croix reported she found Officer Burke "hiding in the kitchen area of the community room" and he appeared to be under the influence of drugs. She offered to drive him home and en route, the parties stopped at a grocery store. She saw "papers" fall out of his jacket and learned they were drug disposition reports and exhibit tags. She confronted him about this and asked if he had drugs on him. After saying no, Officer Burke admitted possessing drugs in the trunk of his vehicle, which was parked at the police station. He told PC St-Croix he was addicted to opiates for the last 2 years but quit cold turkey for the last six weeks with the help of cocaine. Officer Burke later admitted to a police colleague that he had used a line of cocaine while in the grocery store with PC St-Croix.

[13] Upon returning to the police station, PC St-Croix saw drug envelopes and paperwork in his trunk and secured them in a temporary locker. She reported the matter to her superiors. A police investigation revealed that the items originated from the property room of the KLPS and contained controlled substances including cocaine and fentanyl, both Schedule I substances under the Controlled Drugs and Substances Act. It is acknowledged that Officer Burke had no authorized access to the property room containing the drug exhibits as he was on leave.

[14] The police service interviewed several police officers who advised that in their conversations with Officer Burke, he readily admitted he was addicted to opiates and used cocaine to help him curb the addiction. He admitted acquiring drugs from police seizures. No other details were provided.

[15] As a result of the stolen drug exhibits, 8 active drug prosecutions were stayed at the request of the Federal Crown. Crown counsel was unable to furnish details about these cases except to advise they were not major prosecutions but rather appeared to be street level possession type cases.

[16] On April 10 2018, Officer Burke was arrested and provided a cautioned videotaped statement where he admitted to taking the drugs to self-medicate. He reiterated that he was addicted to opiates for the last 2 years and leading up to December 2017, was using almost "a line of cocaine per hour". Further, he advised he nearly overdosed on fentanyl at one point, although the defence qualified that he couldn't recall making this comment. Officer Burke indicated he wanted "a few days of peace with his kids" over the holidays.

[17] A further police investigation confirmed that while investigating the pharmacy prescription case in early 2017, Officer Burke sought cooperation of the drug store staff and had attended at the Shopper's Drug Mart on approximately 10 occasions. The staff turned over drugs to him expecting they would be sent to Health Canada to be tested to determine if they had been tampered. It was determined that Officer Burke received a total of 2431 hydromorphone capsules of varying strength and 1531 were never entered into the property room of the KLPS. Officer Burke acknowledged keeping 1531 pills for his personal use to feed his addiction. There is no allegation he trafficked these drugs. The approximate street value of the drugs was $4995.00.

III. VICTIM IMPACT

[18] There is no victim or community impact information in this case to assess the impact of Officer Burke's conduct on his community. I will have more to say about this later when I discuss the nature of the breach of trust offence.

IV. THE CIRCUMSTANCES OF THE OFFENDER

[19] Mr. Black carefully took the court through Officer Burke's background in oral submissions. I have reviewed the material in Exhibits 1(A) and 1(B) and my failure to mention any document in these reasons is not because I have overlooked it. I have not. The material is simply too voluminous and I have done my best to summarize and highlight the key points with a view of the overarching defence submission that the tumultuous background of Officer Burke urges a finding of exceptional circumstances which justifies that a criminal conviction is not required. As I will explain, I am prepared to find as a fact that Officer Burke has proven that there are exceptional circumstances in this case, however I part company with the defence about how these exceptional circumstances operate in fashioning an appropriate sentence. I have concluded that that the exceptional mitigating factors justify a jail sentence in the community given the gravity of the criminal conduct in this case. Without these circumstances, I would have been inclined to separate Officer Burke from the community and impose a jail sentence behind bars. In my view, the exceptional circumstances do not justify avoiding a criminal conviction or a conviction with a probation order. Officer Burke's criminal conduct in this case was simply too serious to avoid these consequences in this case. I now turn to Officer Burke's background.

[20] Officer Burke is 41 years old. He has no criminal record.

[21] The Burke family has roots in the Lindsay community operating Burke's Honey since 1909. Officer Burke and his family have been long standing members of the Fairview Baptist Church. He has been involved with youth programs, sound board work and is a member of the missions committee. After graduating high school, Officer Burke attended bible school in Wisconsin, USA receiving a degree in religious studies.

[22] In 1998, Officer Burke returned to Lindsay and worked in his family business. He also got married to his current spouse who remains very supportive. This union produced two children who are now 15 and 13 years old.

[23] In 2002, he graduated from Sir Sandford Fleming College with a diploma in fire safety and security management. He was awarded the Peterborough Memorial Centre Award for active involvement in the community, leadership and academic standing.

[24] In 2003, Officer Burke joined the DRPS as a uniform police officer. In 2005, he transferred to the KLPS to be closer to his family and community. From 2005 to 2010, he was a uniform officer and trained to become a drug officer. In the course of doing so, he attended several training courses and programs. In 2010 Officer Burke became the sole drug officer in the KLPS drug unit. He policed the Lindsay area and the surrounding township.

[25] As a police officer, Officer Burke participated in several community events including Tim Horton's Camp Day, Kids and Kops Week and Cops for Cancer. He accumulated several commendation letters, accolades and letters of praise for his work ethic and commitment to the community.

A. The Machete Incident

[26] As a drug officer, Officer Burke was exposed to several traumatic events. The first was in April 2011 when he was executing a search warrant at a residence when a suspect struck him in the face with a machete. It resulted in a laceration requiring 10 stitches, leaving a permanent scar. He narrowly escaped death. Showing resolve, he promptly returned to work. After the machete incident, he began to experience severe anxiety and sleeplessness. A doctor prescribed him 2mg of Lorazepam. Officer Burke submitted a Workplace Safety and Insurance Board (WSIB) claim. The incident resulted in the offender being charged with criminal offences. Officer Burke prepared a victim impact statement in which he forgave the offender for the attack recognizing that by swearing an oath, he was prepared to make sacrifices to protect his community.

B. The Shooting Incident

[27] In June 2011, Officer Burke was the lead investigator in a drug and firearm investigation and was exposed to another traumatic event. He obtained a search warrant and organized a team of 8 police officers to execute the warrant. One member was Police Constable Keith Calderwood, a colleague and friend of Officer Burke. During the execution of the warrant, a suspect opened fire and shot Officer Burke in the leg. PC Calderwood was shot and began to bleed from his mouth. Officer Burke thought he would die. Thankfully, PC Calderwood survived but was hospitalized for a month. Another civilian was shot and killed by police officers. The Special Investigations Unit (SIU) investigated the matter and determined that the police officers involved were justified in using lethal force. The event left Officer Burke scarred and riddled with guilt. He began to experience nightmares, flashbacks and intrusive memories.

[28] Officer Burke reported the matter to the WSIB but later learned that the Inspector of the KLPS didn't submit the claim. No evidence was lead about the circumstances of this omission, which Officer Burke learned of in 2015. He continued to work as a police officer, suffering from anxiety and depression. He continued to take Lorazepam every day to allow him to work. Mr. Black submits that while he was not formally diagnosed at this point, Officer Burke was showing classic signs of suffering from an "occupational stress injury".

[29] From 2012 to 2014, Officer Burke continued to work in the KLPS drug unit. He continued to take prescription medication to cope with his anxiety and depression. In the middle of 2014, Inspector Herbert of the KLPS, recommended that Officer Burke take a leave of absence as he was in his view, burnt out and suffering from paranoia. Mr. Black submitted that after agreeing to take a break, Officer Burke became increasingly disengaged from his family and ultimately his community.

[30] In January 2015, Officer Burke went back to uniform duties but the tenure didn't last long as he submitted another WSIB claim with the assistance of his police union. He went off duty. Inspector Mitchell (now Chief of Police) prepared a narrative of events leading up to the WSIB claim. This claim was approved and permitted a specific number of visits with a psychologist, Dr. Lynne Lamarche, who would continue to assist Officer Burke. In doing so, she gained intimate knowledge of his medical history. Mr. Black provided some of the reports authored by Dr. Lamarche. She ultimately diagnosed Officer Burke with Major Depressive Disorder, Panic Disorder Without Agrophobia and symptoms of PTSD. It was recommended that among other things, he return to work on a graduated schedule but also minimize panic symptoms and anxiety.

[31] After the allotted visits with Dr. Lamarche ended, Officer Burke could not afford to pay for additional sessions and stopped attending in October, 2015. In 2016, he returned to uniform duties and ultimately joined the Major Crime Unit of the KLPS. He obtained a certificate in the Sexual Assault Investigation Course and began to investigate sexual offences. Shortly thereafter, he realized this work was too distressing, but faced with limited options, he continued to work in the MCU.

[32] Despite the reluctance, the quality of Officer Burke's police work did not suffer. His employee evaluations were glowing. In one case, Inspector Herbert of the KLPS wrote: "[T]his may very well be the best evaluation I have ever read". He suggested he be recommended for an acting sergeant position and a promotion.

C. The Percocet Prescription

[33] In 2016, Officer Burke was prescribed percocets to manage pain after dental surgery. He found the effects "euphoric" and assisted with his anxiety and depression as well as the pain. He began to mix percocets with his anxiety medication. Shortly thereafter, Officer Burke was assigned a high profile murder investigation in the Central East Correctional Centre. According to Mr. Black, Officer Burke asked for support from his superiors, which fell on deaf ears. Again, this point was made in submissions and no evidence was called on this issue.

[34] Officer Burke's mental condition began to regress but he continued to work on serious criminal investigations including sexual assault cases. Dr. Lamarche recommended he not work but this never materialized as he was tasked to investigate another high profile murder case in Lindsay. During this time, he was also investigating drug cases and made a decision to retain some hydromorphone capsules from the Shoppers Drug Mart investigation. This did not form the breach of trust offence but was read in a part of the background facts which I must consider in my assessment of a fit sentence.

[35] In 2017, Officer Burke renewed his request for funding from the WSIB to cover his appointments with Dr. Lamarche. WSIB denied this request citing among other things, uncertainty concerning the relationship between his current psychological state and his prior struggles with mental health issues. The WSIB took the position that he didn't seek medical attention in a timely fashion and didn't engage management in a timely way. Officer Burke disputed both assertions arguing in his appeal documents, it was common knowledge he was suffering.

[36] Officer Burke continued to use hydromorphone to self-medicate and work as a police officer. In November, 2017, he returned to Dr. Lamarche who diagnosed him with an Adjustment Disorder with anxiety and recommended, yet again, he not work. Inspector Herbert supported this recommendation and Officer Burke agreed. He advised he no longer used hydromorphone while off work.

D. The Arrest

[37] After being arrested for this offence in April 2018, Officer Burke continued to see Dr. Lamarche on his own and participated in two in-patient treatment programs for PTSD. First, a four-week program at the Canadian Health Recovery Centre and then a six-week program at the Valiant Recovery Centre in Kelowna, British Columbia. Both were privately funded with assistance from his family.

[38] Dr. Lamarche continued to opine that Officer Burke suffered from PTSD as late as January, 2019. In a recent report she wrote:

"Mr. Burke has been experiencing symptoms of Post-traumatic stress disorder that have resurfaced and/or have been excess or baited as a result of past traumatic incidents and he has used alcohol and drugs as a way of coping with these symptoms. It is not uncommon for individuals with PTSD to rely on substances to help them deal with their symptoms. It is well known that PTSD and substance abuse have consistently been found to co-occur".

[39] While awaiting sentence for this matter, Officer Burke is also awaiting a police discipline hearing with the Police Services Board. Mr. Black advised that a jail sentence, including one in the community as a CSO, will mean he will lose his employment. I will have more to say about this later on.

[40] In addition to the helpful chronology provided by Mr. Black, I have reviewed all the supplementary material filed in Exhibit 1(A) to provide additional context to Officer Burke's background. Some of this material was self-reported by Officer Burke or his advocates to advance a specific goal or objective. For example, there are several documents in which Officer Burke or his advocates leveled complaints against the police brass for alleged inaction or workplace issues. None of this was put before me under oath but nor did the Crown seek to test it with cross-examination. I have considered this material and placed the appropriate amount of weight on it.

V. ANALYSIS

A. General Principles

[41] In R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, the Supreme Court observed that courts have broad discretion in balancing all relevant factors in order to meet the objectives and principles of sentencing. However, this discretion is constrained by the principles set out in sections 718, 718.1 and 718.2 of the Criminal Code. The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree and responsibility of the offender. This case illustrates the difficulty of the delicate balance that must be struck to meet the fundamental goals of sentencing.

[42] Section 718 of the Criminal Code dictates that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(1) to denounce unlawful conduct;

(2) to deter the offender and others from committing offences;

(3) to separate offenders from society where necessary;

(4) to assist in rehabilitating offenders;

(5) to provide reparations for harm done to victims and others in the community; and

(6) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community

[43] A fit sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Priest, [1996] O.J. No. 3369 (C.A.), at para. 26. In R. v. Ipeelee, 2012 SCC 13, Justice Lebel observed (at para. 75) that the fundamental duty of a sentencing judge is to "engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences of the person standing before them." In Lacasse, the Supreme Court explained that proportionality is determined on an individual basis – that is in relation to the accused and the offence(s), and by comparison to sentences imposed on other offenders for offences committed in similar circumstances.

[44] Section 718.2 of the Criminal Code codifies the principles that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

B. Breach of Trust

[45] The offence of breach of trust is found in s.122 of the Criminal Code and provides for a maximum sentence of five years imprisonment. The provision reads:

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

[46] Mr. Black provided me with two volumes of cases that he says supports his position for a conditional discharge. I have carefully reviewed all of these cases as well as others on my own. Some of the cases involved police officers who were sentenced for fraud offences of varying degrees with courts granting conditional discharges. Respectfully, I am not persuaded that sentencing decisions involving police officers convicted of fraud offences is on an equal footing with police officers convicted of the offence of breach of trust. While the two crimes share some parallels in that, both are inherently crimes of dishonesty, in my view, a breach of trust engages different sentencing considerations. There is a greater need for deterrence and denunciation in breach of trust cases because the crime involves punishing dishonest conduct in connection with one's official duties. Within these duties, a person often has certain responsibilities and obligations that don't otherwise exist for a non-official or a private citizen. The expectation is that officials are obligated to behave differently than non-officials. So in this case, police officers are held to a higher standard. When they don't and end up breaking this trust by committing an offence in connection with their duties, Parliament has chosen to treat this as a statutorily aggravating factor: see s.718.2 (a)(iii). The message that must be sent to people who breach the trust of their community, peers and others is different from the message that is sent to fraudsters who aren't subject to the same expectation. For this reason, while I have considered the fraud and other cases relied on by Mr. Black, I have not placed too much weight on them. I have placed more emphasis on breach of trust cases involving police officers because I find them to be more relevant to the parity and proportionality analysis that I must undertake in this case.

[47] Mr. Moull relied on the case of R. v. Dominelli, 2018 ONCJ 906, where Justice Misener sitting in the Central East Region, sentenced a police officer for the offence of obstructing justice by destroying or converting evidence for his own use. The court also considered facts proving a breach of trust as part of the aggravating factors. In my view, the facts of Dominelli are not entirely dissimilar to the facts in this case. Officer Dominelli was involved in executing a search warrant at a marijuana dispensary and kept some marijuana edibles that were supposed to be preserved as evidence, for himself. He, along with another police colleague, consumed the edibles and in a state of panic, called 911 for assistance. Officer Dominelli was a well-situated first offender with a similar background to Officer Burke although he did not suffer from an addiction. Justice Misener concluded he was motivated by "reckless curiosity" but the effect of tampering with evidence tarnished the reputation of the criminal justice system. She rejected the defence submission for a conditional discharge and instead imposed a 9 month CSO.

[48] Mr. Moull argues Dominelli is analogous to this case with the obvious difference of Officer Burke's exceptional mitigating circumstances, which he says justifies a jail sentence in the community but not a discharge or a suspended sentence with a probation order.

[49] Mr. Black disagrees, arguing Officer Burke's case is truly unique and therefore justifies a discharge, the least serious sentence available under the Criminal Code. While I agree that there is no case that is truly like the case of Officer Burke, the legal principles of proportionality and parity require me to follow similar cases committed by similarly situated offenders in similar circumstances. The greater the similarity between the cases, the more weight they will have. Conversely, the more dissimilar they are, the less weight they will have. In the end, I must impose an individualized sentence that is tailored to Officer Burke's circumstances.

[50] Several cases in Ontario that have sentenced police officers for breach of trust have held that the dominant sentencing objectives are general deterrence and denunciation. Some cases that were not cited in Dominelli but are helpful in animating this discussion include a decision of Justice Casey Hill in R. v. Cook, 2010 ONSC 5016, [2010] OJ No. 4414 (Ont. Sup. Ct). This decision was cited with approval in R. v. Rudge, [2014] O.J. No. 137 (Ont. Sup. Ct.) and R. v. Greenhalgh, [2011] B.C.J. No. 745; affirmed [2012] B.C.J. No. 1235 (B.C.C.A.). In Greenhalgh, the trial judge provided a helpful summary of the Cook principles:

1. Police officers, as officials discharging public duties, occupy a special position of trust in the community;

2. As in any line of work, the moral compass of an individual police officer may become untrue as he or she elects "to cross to the other side of the road and become a criminal". Police officers have opportunities, practically on a daily basis, to cross the line and engage in prohibited conduct. The public trusts them to resist the temptation and relies upon the courts to deal firmly with those who stray;

3. When sentencing a police officer for a crime involving breach of the public trust the court may properly take into account that the accused would necessarily be well aware of the consequences of its perpetration;

4. Not surprising is the reality that individuals who find themselves before a criminal court convicted of a breach of trust crime are able to adduce abundant good character evidence - "[i]t is, of course, this very type of character profile which allows an individual to attain a position of trust";

5. In any case involving conviction and sentence, the accused is stigmatized, more or less, by the process. 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;

6. Quite apart from the police corruption offence in s. 122 of the Criminal Code, breach of a position of trust is a deemed aggravating factor in sentencing: s. 718.2 (a)(iii) of the Code;

7. General deterrence and denunciation drive the sentencing process in abuse of trust prosecutions. In the absence of an exceptional mitigating factor (e.g., addiction), severe sentences are justified for police officer offenders to honour these sentencing principles;

8. While a police officer who breaches the public trust brings upon himself or herself the consequence of dismissal, that penalty falls to be considered within the totality of the circumstances worthy of review by a sentencing court. The jeopardy of loss of employment on the part of a police officer cannot trump the pressing need for denunciation and deterrence;

9. Police officer offenders will almost inevitably serve much or all of the sentence in protective custody. This reality, involving as it does more limited social contact and institutional amenities, ordinarily warrants consideration in mitigation of punishment.

[51] Appellate courts in Ontario have picked up on this theme. For example, in R. v. Schertzer, 2015 ONCA 259, the Court of Appeal cited with approval the dicta from the Nova Scotia Court of Appeal in R. v. Cusack (1978), 41 C.C.C. (2d) 289, who held that police officers merit more severe sentences because of their position of public trust and their knowledge and consequences of its perpetration. In R. v. Hansen, 2018 ONCA 46, the Ontario Court of Appeal discussed the concept of public trust in the context of a perjury offence, which is helpful in contextualizing a breach of trust offence. The court said:

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.

[52] In my view, these comments apply with equal force in this case because Officer Burke was an experienced drug officer who knew how to commit the offence without detection. Officer Burke tampered with evidence to use it for his own benefit. The seriousness of the breach of trust is magnified by the fact that the drugs were not marked for destruction. Rather, the drugs were being stored as evidence for prosecutions. For this reason, I share the view of Justice Misener in Dominelli, who held at para. 49 "[E]vidence 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".

[53] Despite the appellate guidance that deterrence and denunciation must drive the sentencing in cases of breach of trust, I am very much alive to the push towards individualization, which has now been constitutionally recognized. As Justice LeBel in Nasogaluak held (at para. 43): "[N]o one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences". Here, the parties agree that Officer Burke's personal circumstances are exceptionally mitigating which call for a less severe sentence. However, there is disagreement about what this means as an individualized sentence. To repeat, Mr. Black eloquently pushed for a conditional discharge arguing that any kind of jail sentence or a conviction would be disproportionate. Mr. Moull says the breach of trust was egregious but given the background, a jail sentence in the community would be a proportionate response. I will now turn to a consideration of the aggravating and mitigating factors.

C. Aggravating Factors

[54] First, the breach of trust itself is a statutorily aggravating factor in s.718.2 (a)(iii) of the Criminal Code which is some evidence of Parliament's treatment of this offence. As stated above, Officer Burke's conduct strikes at the heart of the justice system.

[55] Second, the circumstances of abusing the trust bestowed upon him as a peace officer are particularly aggravating because Officer Burke removed drug exhibits from a locker when he was not authorized to access the locker. In this way, he breached the trust of his police service who did not grant him permission to access the locker. The circumstances leading up to this are important because it was recommended that Officer Burke not work because of his personal issues and he knew he wasn't allowed to access the locker. As a former drug officer, he would have known how to access the drug locker without detection. There would be no reason for his police colleagues to question his attendance or doubt him. He took advantage of this knowledge for his own benefit.

[56] Third, for a brief period of time, Officer Burke was using cocaine, a Schedule I substance in the CDSA. Officer Burke told PC St-Croix he was using cocaine for 6 weeks leading up to stealing the drug exhibits because it helped him ween off his opiate addiction. While I accept that Officer Burke was desperate to continue to work and be a "good dad" as evidenced by his text messages to colleagues, it does not neutralize the seriousness of graduating to a more serious narcotic. As a former drug officer, he would have known the insidious effects of cocaine. Moreover, the drugs he stole was cocaine, not prescription pills. It goes without saying that cocaine would not be available legally and thus Officer Burke knew he had to resort to illegal means to acquire them. He removed more than just one evidence packet suggesting he was intent on using cocaine more than just once as a means to cope. I can only imagine that if he wasn't caught stealing the drugs, it could have created a dangerous situation not only for himself but also the community given his admission of how much cocaine he was ingesting to self-medicate.

[57] Fourth, Officer Burke committed a separate breach of trust and an ongoing one by acknowledging his involvement in the siphoning of hydromorphone pills from a pharmacy that he was investigating. This conduct is particularly troubling and just as or even more serious than stealing the cocaine. In 2016, thus during the throes of his opiate addiction, Officer Burke was entrusted to investigate an anonymous complaint that capsules were being tampered. He sought and received the cooperation of the drug store staff and for a period of approximately 5 months attended at the pharmacy on 10 occasions where capsules were turned over to him with the understanding they would be sent to Health Canada for analysis. Officer Burke treated this police investigation as his own personal pharmacy to feed his addiction and repeatedly broke the trust of the public by keeping pills for himself. It is aggravating because he did not just do this once but did it repeatedly and kept not just a pill or two but 1531, valued at $4995. I accept that he was not trafficking the pills and perhaps was stockpiling them for his own use which proves just how bad his addiction was, but as a drug officer, he would have known the severity of his conduct. He knew he was compromising a police investigation and repeatedly stealing potential evidence. It shows some level of sophistication because he did not steal all the pills, thus an inference can be drawn that he did so deliberately hoping nobody would know they were missing. As a drug officer in a small community with little or no drug enforcement unit, this represents a profound breach of trust.

[58] Fifth, the consequences of Officer Burke's actions as a result of stealing drugs from the exhibit locker resulted in serious consequences as 8 active drug prosecutions were stayed by the Federal Prosecutor. In submissions, I pressed Mr. Moull on details of these cases to determine the seriousness of the compromised cases and was advised they didn't involve major prosecutions where significant police resources were wasted. While this attenuates the seriousness of this aggravating factor, it only does so slightly. In my view, this is an important aggravating factor, which is less prevalent in the cases cited by Mr. Black. As stated earlier, tampering with evidence strikes at the heart of the criminal justice system. It is an important distinguishing factor in cases where less stiff sentences were imposed. I will highlight two cases to make this point:

(i) In Cook, supra, a police officer stole 15 packages of what he believed was cocaine from a crime scene. He did not plead guilty. The court found he was motivated by greed and did not suffer from any mental health or addiction issues. In addition, 10 prosecutions were impacted by Officer Cook's conduct, which Justice Hill said was a "significant" aggravating factor. Officer Cook was sentenced to a 4 year jail sentence for attempted possession of cocaine with an 18 month consecutive jail sentence for the breach of trust offence;

(ii) In R. v. Smith, [2015], B.C.J. No. 1537 (Sup. Ct.), the police officer was an exhibits custodian and stole more than $116,000. She suffered from a gambling addiction. In sentencing the offender, the court noted (at para. 52) it was aggravating that her conduct was an ongoing abuse of trust with a "known and substantial risk of compromising the integrity of criminal prosecutions and the integrity of the police". In that case, 99 active files were compromised. The offender in Smith received a jail sentence of 18 months.

[59] I highlight these cases to reinforce the point that where active prosecutions are compromised by a breach of trust, this is a significant aggravating factor. It is not something that I can easily overlook because of an addiction. In this case, the community in Lindsay was deprived of justice in eight cases because of the conduct of Officer Burke. This is important because I do not know for example, if there were any victims who were silenced by the aborted prosecutions or if there were any individuals who were drug addicts who were deprived of the opportunity of intervention by the justice system to assist them with their addiction. I don't know if these individuals are still on the street trafficking or buying illegal drugs putting the community at risk. While Officer Burke cannot be held to account for the decisions of a Federal Prosecutor who requested that these cases not be prosecuted, I find that Officer Burke, as a drug officer, knew that tampering with evidence would result in the cases being compromised. This factor tarnished the reputation of the justice system and brought disrepute on his police colleagues who worked on those cases. Notwithstanding Officer Burke's addiction, this remains a highly aggravating factor in the circumstances of this case.

D. Mitigating Factors

[60] There are several mitigating factors in this case.

[61] First, Officer Burke pled guilty which I accept as a genuine expression of remorse. Indeed, when addressing the court, he apologized not only to the community but also to fellow police officers and his family. It was a heartfelt apology and it shows a considerable amount of insight into his offending conduct.

[62] Second, Officer Burke is fortunate to have the ongoing support of his family and community. I have no doubt in concluding that Officer Burke is a dedicated father to his children and spouse and was an excellent role model before he lost his way. I am satisfied with their love and support, he has found his way and has the means to stay on the right path, which is a significant mitigating factor.

[63] Third, Officer Burke's good character is evidenced by the volumes of character and reference letters that I have reviewed in Exhibits 1A and 1B. I do not have to summarize them in great detail because I accept without any hesitation that Officer Burke remains a valued asset to his community. His work in his church and community is important and wasn't motivated by selfish accolades. I was impressed that almost everybody who wrote letters on his behalf knew the crime he committed and said his actions were out of character. I accept this.

[64] Fourth, Officer Burke was a hardworking and valued police officer. This is evidenced by his several commendation letters and the chronology of his policing career where he became the "go to" person for investigating difficult cases. Ironically, this may have contributed to his downfall because of his desire to keep working as a police officer while battling a drug addiction and mental health issues. He was a reliable and dedicated police officer.

[65] Fifth, I find the financial and psychological stress on him and his family to be mitigating factors. I accept that after his failed WSIB claim, he had to resort to his own funds, which he did not have, to assist him in treating his addiction and mental health issues. I accept he spent over $100,000 in this regard, which takes a significant toll on a family.

[66] Sixth, it is a mitigating factor that Officer Burke has taken steps on his own accord towards rehabilitation. After his failed WSIB claim, he had the insight that he needed the continued assistance of Dr. Lamarche who he had to fund privately. It would have been easy to simply stop going because of financial reasons, which did happen for a short while. Moreover, I am very impressed that Officer Burke has participated in two in-patient programs to deal with his PTSD, which included the Canadian Health Recovery Centre (4 weeks) and the Valiant Recovery Centre in British Columbia (6 weeks). This shows immense insight into his offending conduct and reduces the likelihood of "falling off the wagon" and turning to opiates and other drugs to function in his day-to-day affairs. It deserves significant weight.

[67] Seventh, and perhaps most importantly, I find that it is an exceptional mitigating factor that Officer Burke was addicted to opiates and suffering from PTSD during the time he committed his criminal offences. In my view, this has an impact on both the sentence that is to be imposed and the public's perception of the circumstances surrounding the breach of trust offence. The Crown does not dispute this finding but simply argues it operates in a different way in terms of the sentence that is to be imposed as opposed to the manner suggested by the defence. I will discuss this in greater detail below. For now, I accept that Officer Burke was diagnosed with PTSD by Dr. Lamarche for issues dating back to 2011 and then later for a major depressive episode because of the trauma he was exposed to during the shooting and machete incidents. It does provide context to his crime but begs the question why he continued to take on difficult assignments.

E. Neutral Factors

[68] There is also one neutral factor in this case which is neither aggravating or mitigating. Mr. Black submitted that Officer Burke was "overworked" by his police service and not enough was done by his employer to assist him in a timely way with his PTSD treatment. It was only after Officer Burke took matter in his own hands that with the assistance of his police association, he submitted a WSIB claim. In particular, it was argued that after the two traumatic incidents in 2011, the WSIB claim had never been processed nor was there any follow up by his employer until he discovered this on his own much later on. I start with the observation that no specific evidence was called on this issue by either side because the implication of this submission is that Officer Burke's employer was potentially negligent in allowing him to work when they knew he was not in a mental state to do so. I simply don't have enough evidence to arrive at this finding of fact. Based on a consideration of all the submissions, including the written material relied on by Mr. Black, it would appear that Officer Burke was trying to work through his mental health and addiction issues while at the same time, policing, which in hindsight was not a wise decision. It did not help that he made the decision to accept positions investigating sexual assaults and notorious homicides, which likely adversely contributed to his mental wellbeing. In saying this, I do not fault Officer Burke as he was a hardworking police officer who was trusted by his police service and was the sole breadwinner of his family. In my view, this is a neutral factor that I have considered along with the rest of the factors in this case.

F. Collateral Consequences

[69] A proportionate sentence may require an examination of the collateral consequences that may arise from the commission of the offence, the conviction for the offence, or the sentence imposed: R. v. Suter, 2018 SCC 34, at para. 47. A collateral consequence is not necessarily aggravating or mitigating within the meaning of s.718.2 (a) of the Criminal Code as these consequences are not related to the gravity of the offence or the level of responsibility of the offender.

[70] Collateral consequences are integrally connected to the goal of an individualized and proportionate sentence because the sentencing court is required to shift the focus to concerns about whether the impact of the sentence would have a more significant impact on the offender because of the offender's circumstances: Suter, at para. 48. At the same time, these consequences "cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender": Suter at para. 56.

[71] Mr. Black submits that anything short of a discharge including a conviction or a jail sentence of any variety, including one in the community, may result in Officer Burke losing his employment with the KLPS, which he is fighting to keep. I was reminded that Officer Burke is the sole provider for his family. It would be difficult to find any other job as he is trained as a police officer. I was not provided with firm details that in fact, Officer Burke will lose his employment but I am prepared to rely on the extensive experience of Mr. Black in this regard that it is a possibility. I am prepared to treat the prospect of losing his employment as a collateral consequence in this case because it will impact both Officer Burke and his dependents. However, it is not my duty or function to weigh in on this issue as it will be determined by a police tribunal on a different record. I realize that these reasons may impact their decision but I must take this factor into account along with other factors in crafting a sentence. I am mindful of binding authority that I must follow which says that the jeopardy of losing employment on the part of a police officer cannot 'trump the pressing need for denunciation and deterrence': R. v. Preston, 2008 ONCA 530 at para. 3.

[72] With the above legal framework in mind, I will now turn to the various sentencing options that have been advanced in this case, starting with the position of the defence.

G. Is a Conditional Discharge a Fit Sentence?

[73] Section 730 of the Criminal Code provides that a discharge can be imposed where it would be in the best interests of an accused and not contrary to the public interest. A discharge can be either absolute or on conditions prescribed on a probation order. When a discharge is imposed, a conviction is not registered, thus the recipient does not receive a criminal record.

[74] Mr. Black submitted that a conditional discharge would be a fit sentence because given all the circumstances of Officer Burke, it would be in his best interests and a discharge fits with the public interest. Mr. Moull strongly disagrees arguing that a discharge would be contrary to the public interest.

[75] I am satisfied that a discharge would be in Officer Burke's best interests because it would avoid a conviction and the stigma of a criminal record. The real issue is whether a discharge would not be contrary to the public interest.

[76] The public interest requires consideration of the circumstances of the offence, the background of the offender and the purpose and principles of sentencing. I accept that as a general principle, Officer Burke does not have to satisfy me that a discharge is in the public interest but rather only that it is not contrary to the public interest, which is a lower standard.

[77] In R. v. Snyder, [2011] O.J. No. 4904 (Ont. Prov. Ct.), Justice Green provided a helpful review of the law relating to conditional discharges by observing (at paras. 21-22) that the public interest component of a discharge takes into account the public interest in deterring others from committing similar offences: R. v. Fallofield, 13 C.C.C. (2d) 450 BCCA; R. v. Sanchez-Pino (1973), 11 CCC (2d) 53 (Ont. C.A.). In R. v. Meneses, [1974] OJ No. 736 (Ont. C.A.), the Court of Appeal held that a discharge may be available where a broader view of the public interest is considered and where other considerations are more important. Having taken this broader view and considering other factors such as Officer Burke's addiction to drugs and his PTSD diagnosis, I am still of the view that the nature of this offence which involves a serious and repeated breach of trust which resulted in cases being compromised militates against a discharge. A strong message needs to be sent to other police officers that this type of conduct is serious and will not be condoned by the courts.

[78] I have carefully considered the cases that were cited to me by Mr. Black in support of his submission for a discharge. I will not say much about the cases that did not involve police officers found guilty of breach of trust offences, for reasons that I cited above. Suffice to say, I did not find those cases to be helpful. There were some cases that were more helpful but as I will explain, not entirely so because they can be distinguished.

[79] First, in the case of R. v. Todd Bertrend, (unreported, August 14, 2017), Justice Boxall sentenced a police officer who pled guilty to one count of possession of oxycocet contrary to s.4(3) of the Controlled Drugs and Substances Act ("CDSA") to a conditional discharge and probation. Staff Sergeant Bertrend was a high-ranking drug officer with the Brockville Police Department. Like here, Staff Sergeant Bertrend became addicted to "oxys" after herniating a disc in his back due to his policing duties. While awaiting surgery, he developed anxiety and was prescribed anxiety medication. His prescription was insufficient and given the stress of his job, he found that the oxys were helping him cope. He turned to a woman who began to sell him the oxys. After police surveillance, he was arrested after a hand to hand transaction where he bought 124 oxy pills. It was conceded by the parties that the drugs in his possession were for personal possession.

[80] Crown counsel in Bertrend sought a suspended sentence and probation. In analyzing the public interest equation as part of a conditional discharge, Justice Boxall held at paragraph 30: "I accept that as a general rule, a police officer who commits an offence and has violated the public trust will receive a sentence that is denunciatory and emphasizing deterrence that may be harsher than a private citizen". I agree with this expression of the law which as I stated before, separates the cases where a police officer commits a fraud offence with those who commit a breach of trust, where in my view, there is a greater need for deterrence and denunciation. Notwithstanding this principle, Justice Boxall held that in the circumstances of his case, a discharge was appropriate because the addiction and the manner in which it arose was an exceptional mitigating factor. Staff Sergeant Bertrend took responsibility for his addiction, arranged for immediate residential treatment and continues with follow up treatment. No doubt Justice Boxall was motivated in his result by the Ontario Court of Appeal in R. v. Lensen, [1994] OJ No. 359, where the court held that a drug addiction can be an exceptional mitigating factor which calls for leniency in sentencing police misconduct.

[81] In this case, I have considered the legal reasoning in Lensen because I have concluded that there is an exceptional mitigating factor related to Officer Burke's addiction and PTSD diagnosis but both Lensen and Bertrend are fundamentally different from this case because Officer Burke's criminal conduct was much more serious and the extent of his moral fault is much higher. The law requires me to evaluate Officer Burke's moral blameworthiness as part of a proportionality analysis. In R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont. C.A.), Justice Doherty explained (at para. 91) 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".

[82] Both Lensen and Bertrend are cases where the police officers were convicted of drug offences. While there was a breach of trust component, they were not convicted of a breach of trust offence like Officer Burke is. Officer Lensen removed a large quantity of cocaine that had been deposited into a drug vault for his own use to feed a drug addiction. The Court of Appeal in a short endorsement dismissed the sentence appeal and held that normally a custodial sentence would have been required but the circumstances were unusual including that the evidence was marked for destruction, which of course means that no cases were compromised. That is not the case here and a strong distinguishing factor. In any event, Officer Lensen did not receive a discharge. The sentencing judge imposed a suspended sentence and probation.

[83] Bertrend can also be distinguished. Officer Bertrend did not remove drugs from an evidence locker and instead purchased drugs from a private citizen to feed his drug addiction. After some surveillance, he was arrested in possession of 124 oxycocet pills that he had purchased from a woman. Like here, Officer Bertend became addicted to "oxys" after a workplace injury and after being prescribed anxiety medication. Justice Boxall treated his addiction as an exceptional mitigating factor and imposed a conditional discharge. Bertrend is different from this case, which involved an ongoing breach of trust where Officer Burke stole a significant quantity of hydromorphone pills culminating with stealing cocaine, which compromised several criminal cases. It did not involve a one-time moral transgression to feed a drug addiction.

[84] I have also considered the case of R. v. Murray, [2018] OJ No. 3083 (Ont. Prov. Ct.). Officer Murray pled guilty to one count of breach of trust. His crime involved stealing 44 pills of oxycodone from an evidence locker and replacing them with another product. It was accepted that Officer Murray was taking the pills as he was addicted to pain medication caused by chronic pain. Like Officer Burke, Officer Murray was an exemplary police officer who was ravaged by the demands of policing. Unfortunately, he too was diagnosed with PTSD. Crown counsel requested a suspended sentence and probation and Justice Harris imposed a conditional discharge followed with a maximum probation order for 3 years along with 240 community service hours.

[85] With the greatest of respect to my judicial colleague in Murray, I do not find the legal reasoning persuasive and choose not to follow it as the case is not binding on me. I share the observation of Justice Misener in Dominelli, who also chose to not follow it by stating Officer Murray's conduct was a "profound violation of the public trust" which did not merit a discharge. I agree. In any event, the case can be easily distinguished despite the result because Officer Murray's moral fault was much less than Officer Burke's because his conduct also involved a one-time moral transgression. It would appear that there were ongoing issues with the drug locker in his police department and he took 44 pills on one occasion to deal with his addiction. In this case, Officer Burke stole cocaine and admitted siphoning thousands of prescription pills for his own benefit. Moreover, Justice Harris was clear that no cases were compromised which is not the case here where 8 cases fell by the wayside. Officer Burke's moral fault is substantially higher because his criminal conduct spanned months given his investigation of the pharmacy, not one day. Accordingly, I do not find Murray persuasive and do not follow it.

[86] Finally, I have considered other cases which might support the defence position and they too are not helpful. These cases can be distinguished because the facts were either less serious or the there were other factors which aren't present here which merited a discharge. For example see, R. v. Gray, [2000] OJ No. 3596 (Ont. SCJ); R. v. Carson, [2004] OJ No. 1430 (domestic assault case) R. v. Griffin, [1975] PEI No. 64, 23 CCC (2d) 111 PEICA. The cases that have the hallmarks of a discharge involve a fleeting error in judgment, not a prolonged and calculated error in judgment.

[87] I find the comments of Justice Misener in Dominelli persuasive where she held at para. 74: "… 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". In my view, a discharge, on this record, would send the wrong message to the public and police officers and would be contrary to the public interest. A conviction must be registered. This leads me to the next question of whether a suspended sentence with a probation order is a fit sentence or whether a jail sentence is required.

H. Would a Suspended Sentence be an Unfit Sentence?

[88] Section 731(1)(a) of the Criminal Code permits a court to "suspend the passing of sentence" and instead place the accused on a period of probation. A court must be satisfied that a suspended sentence is appropriate having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission.

[89] Mr. Black argued as an alternative submission that a conviction without any jail component would satisfy the ends of justice. It would be less harsh than a jail sentence where the loss of employment would be more likely. Not much time was spent on this submission as the core defence position was for a discharge. That said, I will evaluate this submission.

[90] In R. v. Ursel, [1997] B.C.J. No. 1853, 117 C.C.C. (3d) 289 (B.C.C.A.), Justice Finch explained suspended sentences as follows:

Where a suspended sentence is granted, in conjunction with a probation order, the court does not pronounce any sentence. The form of penalty to be imposed remains unknown, and if the offender complies with the conditions of the probation order, may never be imposed. If a condition of a probation order is breached, the offender may be charged with breach of the probation order, which is a separate offence. Proof of that offence must be made to the usual criminal standard, that is, beyond a reasonable doubt. The court may, as well, on proof of the breach, revoke the earlier order suspending sentence and impose the penalty it would have imposed for the original offence had the sentence not been suspended.

[91] Mr. Black submitted that a suspended sentence will result in a criminal conviction for Officer Burke which will achieve the necessary deterrent and denunciatory effect without imposing a jail sentence which would be disproportionate. A corollary of this submission is that a police discipline tribunal may look more favorably upon a conviction as opposed to a "jail" sentence of any variety, which may make it easier for Officer Burke to keep his employment.

[92] While I have given this argument careful consideration, I am not satisfied that a criminal conviction alone would be proportionate to the moral blameworthiness of Officer Burke's criminal conduct or proportional with similar cases. I tend to agree with Justice Misener in Dominelli that a suspended sentence is inadequate to express the seriousness of the conduct, which in that case was less serious than the conduct here.

[93] I have considered that Officer Burke's addiction and PTSD diagnosis is an exceptional mitigating factor but in my view, this does not tilt the scales of justice against a jail sentence, which in my opinion is the only fit sentence that will achieve all the relevant goals of sentencing. I have looked to the cases for guidance and they do no advance the defence position because they all involved crimes that were less serious in nature. For example, in Lensen, the offender removed drugs from a vault on one occasion, which did not compromise any criminal cases. In R. v. Kramp, [2014] OJ No. 6592 (Ont. Prov. Ct.), Justice West considered the crime of Officer Kramp who conducted 7 "offline" searches in the Canadian Police Information Centre Database (CPIC) while on duty and shared this confidential information with others who were involved in drug transactions. Like Officer Burke, she too was suffering from an addiction, but to alcohol and was dealing with mental health issues, which made it difficult for her to perform her duties. Like Officer Burke, she took substantial steps towards rehabilitation. Justice West imposed a suspended sentence based on a combination of the addiction which acted as an exceptional mitigating factor, the fact that Officer Kramp had spent 3 days of pre-trial custody and because she had served 10 months on a stringent bail which he credited as the equivalent of 4 months of pre-trial custody. More importantly, Officer Kramp's moral fault was much lower than Officer Burke. At paragraph 39, Justice West observed:

It is important to note that her actions did not jeopardize any ongoing investigations or prosecutions. Although there was a risk an informant might have been identified, it did not occur. She did not provide the name of any confidential informant to anyone. This is acknowledged by the Crown.

[94] In my view, the decisions in Lensen and Kramp are fundamentally different because the nature of Officer Burke's ongoing breach of trust was more egregious. I have also considered other cases cited to me by Mr. Black where offenders received suspended sentences and I am not persuaded by them because again, they all involved less serious crimes. For example, in R. v. Kelly, 2004 ABPC 110, [2004] OJ No. 811 (Ont. C.J.), Justice Cowan imposed a suspended sentence where a police officer was convicted of two counts of possession of cocaine. Officer Kelly was addicted to cocaine and was suffering from personal issues in his life, which was the motivating factor of his crime. Justice Cowan rejected the call for a conditional discharge and in passing noted that it was "not appropriate" for the Crown to seek a period of incarceration to be served in the community as an alternative. It's unclear from the decision why Justice Cowan came to this conclusion but regardless, he imposed a suspended sentence. I do not find Kelly persuasive because it did not involve an ongoing and serious breach of trust with significant consequences.

[95] I have considered the argument that a conviction without any jail component may be looked at more favorably by a police tribunal, thus the collateral consequence of employment should work towards a suspended sentence and against a jail sentence. Respectfully, I cannot accept this argument. There is a pressing need in this case, given the seriousness of Officer Burke's crime, for denunciation and deterrence. While I don't know this for sure, I suspect that based on a review of the legal principles that Officer Burke's breach of trust may result in the termination of his employment. In R. v. Feeney et al. (2008), 2008 ONCA 756, 238 CCC (3d) 49 (Ont. C.A.) at para. 8, the Court of Appeal approved the reasoning in R. v. Cusack, [1978] NSJ No. 538 (NSSC App. Div.) at para. 13, that in a case of a conviction for serious breach of trust in the course of duty, the "act will result not only in dismissal from the position of trust but also in the imposition of a substantial punishment". By its nature, this is a serious breach of trust although I don't know how a police tribunal will treat it. I do not know what Officer Burke's punishment will look like as Mr. Black helpfully provided me with a list of factors that a police tribunal will consider and they are much more broader than the factors I must consider in imposing a fit sentence. I also don't know if the police tribunal will approach the question of dismissal differently because of Officer Burke's drug addiction and PTSD diagnosis. All this being said, I am not prepared to dilute deterrence and denunciation for this reason simply to avoid a jail sentence, which in my view is the only fit sentence in this case.

[96] I have also considered the defence submission for a suspended sentence based on cases where employment was taken into account. These cases are not helpful. For example, in R. v. Adamson, [2017] OJ No. 1454 (Ont. Prov. Ct.), Justice West granted a discharge to a youthful first offender convicted of an assault causing bodily harm offence. The offender had a drug addiction, mental health issues and a difficult background and took significant upfront steps towards rehabilitation. The offender worked in the insurance industry and a conviction would have made it difficult to obtain a specific designation. Mr. Black cited Adamson to me but it can be distinguished because it did not involve a police officer and in any event, a court is guided by different considerations when sentencing a youthful first offender. The principle of restraint works to use jail as a sentence of last resort. See for example R. v. Batisse, 2009 ONCA 114, [2009] OJ No. 452 (C.A.) at paras. 32 to 34. The youthful first offender scenario does not apply in this case.

[97] For the above reasons, I find that a suspended sentence with a probation order would not be a fit sentence given the degree of responsibility of Officer Burke's crime and the serious circumstances surrounding its commission. The theft of the hydromorphone pills was a serious crime, which went undetected until Officer Burke came clean after he was caught stealing cocaine. I accept that Officer Burke was working in a stressful job within a challenging workplace where demands were being made of him. Unfortunately, the stigma of mental health remains taboo in some circles but in the end, police officers, unlike others, are held to a higher moral ground. When police officers turn to crime it completely subverts the rule of law. I simply cannot accept that Officer Burke was paralyzed by his drug addiction or PTSD diagnosis because he chose to cope with his disease by turning to opiates. This is no different than what a private citizen might do but more is expected of police officers who have the trust of their community in their hands at all times. Officer Burke was a functioning addict who used his position as a police officer for his own benefit when things did not go his way with WSIB. It is unfortunate that occurred but it does not neutralize the seriousness of Officer Burke's conduct. He committed serious crimes over a span of time, not just once. Despite the exceptional mitigating factor of Officer Burke's drug addiction and PTSD diagnosis, a jail sentence is warranted in the circumstances of this case.

[98] I will next turn to a consideration of the proposed jail sentence in this case which the Crown says should be a jail sentence in the community or a CSO. Before I do, I will pause to observe that reasonable members of the public might ask after considering these reasons why a jail sentence behind bars isn't the appropriate sentence in this case. Some might wonder, in light of my repeated comments in these reasons that Officer Burke's criminal conduct of stealing evidence was a serious and ongoing breach of trust, why separating him from the public is not a sentencing option. The answer is simple. I have not considered this a viable option because Crown counsel as a quasi-Minister of Justice who represents the will of the public did not request a jail sentence behind bars. In my view, it would be unfair to consider this as an option because Officer Burke's guilty plea was informed by a decision of Crown counsel that at worst, the Crown would advocate for a jail sentence in the community and not behind bars. While I have the discretion to sentence Officer Burke in any fashion depending on the record placed before me and the applicable legal principles, I did not invite submissions on a jail sentence behind bars, out of fairness. Accordingly, these reasons will not entirely address the fitness of a jail sentence behind bars.

[99] Having said this, I must still evaluate the Crown's submission for a jail sentence in the community in light of my conclusion that the breach of trust in this case was a serious offence demanding deterrence and denunciation. For obvious reasons, Mr. Black did not argue against a CSO. Mr. Moull submitted that a CSO should be imposed relying on the decision in Dominelli where Justice Misener imposed a 9 month CSO with house arrest for the first six months. Officer Dominelli tampered with evidence by consuming it because he was curious. He did not have a drug addiction or a PTSD diagnosis like Officer Burke but at the same time, his conduct was arguably less serious. While I have adopted the legal reasoning of Justice Misener in this case, it is important to observe that the reasons in Dominelli were aimed at addressing the submission for a conditional discharge. The CSO that was ultimately imposed was a footnote to the sentencing decision. Accordingly, there isn't much legal authority to follow on whether a CSO is appropriate or not which requires me to examine this issue in light of the Crown's position.

I. Is a Conditional Sentence Order a Fit Sentence?

[100] After considering the sentencing record as a whole, I am satisfied that a CSO would be a fit sentence in this case. I say this for the following reasons.

[101] First, section 742.1 of the Criminal Code permits a court to impose a CSO in certain circumstances provided that certain pre-conditions are met. Parliament sought to emphasize the virtues of restorative justice and alternative measures of punishment, even for relatively serious crimes. As some cases have noted, a CSO provides judges with a sentencing option that is halfway between probation and imprisonment. In R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, [2000] 1 S.C.R. 61 (S.C.C.), the Supreme Court emphasized that a CSO is designed to denounce and deter while also promoting rehabilitation and restoration. This is unlike a probation order which is attached to a discharge or a suspended sentence whose primary function is to rehabilitate and restore. A CSO can have punitive conditions, which is supposed to mirror a jail sentence behind bars to achieve a denunciatory and deterrent effect. Here, it is Crown counsel who advocates for a CSO based on Officer Burke's personal circumstances including his drug addiction and PTSD diagnosis. Despite my view of Officer Burke's serious breach of trust, I am satisfied that his crime can be met with a CSO.

[102] Second, a CSO in this case is not barred by operation of the Criminal Code. Among the five pre-requisites that must be met, only two are impacted in this case. They are (i) the court must be satisfied that the service of the sentence in the community would not endanger the safety of the community; and (ii) the court must be satisfied that the conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. I am satisfied that Officer Burke does not present a danger to the safety of his community. When Officer Burke is not in the throes of his addiction and his mental state is stabilized, he may well be an asset to his community.

[103] Third, I am also satisfied that a CSO would be consistent with the fundamental purpose and principles of sentencing as set out in the Criminal Code which again, requires that a sentence be proportionate to the gravity of the offence and the degree and responsibility of the offender. In Proulx, Chief Justice Lamer (as he then was) stated the following in considering this issue:

... [S]entencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender's prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim's wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code). This list is not exhaustive.

In my view, both punitive and restorative objectives can be achieved in this case with a CSO, even where deterrence and denunciation are important factors. Restoration is also important because of Officer Burke's drug addiction and PTSD diagnosis, which I have treated as an exceptional mitigating factor. It provides context to his serious crime and the effect it had on his community. Even though Officer Burke tampered with evidence and tarnished the reputation of his police service and peers, separating him from the community will compromise his rehabilitation efforts, which he has already commenced. This would have a disproportionate impact on him. If these efforts were not undertaken, I would be less inclined to consider a CSO.

[104] Fourth, I am satisfied that punitive conditions can be imposed limiting Officer Burke's liberty and freedom in the community that he has harmed. This is Officer Burke's first brush with the law and likely his last. There is no evidence before me that Officer Burke cannot or is unable to abide by court orders, which might make the imposition and supervision of a CSO not viable.

[105] I am satisfied that allowing Officer Burke to serve a jail sentence in the community can provide significant deterrence and denunciation because I will make it clear to him as will his supervisor that should Officer Burke decide to test the limits placed on his freedom in the community while he continues with his rehabilitation efforts, he may be met with an allegation of breaching his conditional sentence which might mean he would serve a jail sentence behind bars. I have no doubt in believing that Officer Burke has been specifically deterred and the CSO will deter him further.

[106] In the final analysis, I have considered the perspective of a reasonable member of the public who might ask, why a CSO is more appropriate than a suspended sentence and a probation order if the end result is the same, namely, Officer Burke will not be separated from the community. Some might wonder if Officer Burke is "getting a break" because he's a police officer. In my view, the answer is Officer Burke is not getting a break because a CSO in this case is an individualized and proportionate response to the seriousness of Officer Burke's crime and his exceptional background. A CSO is first and foremost a jail sentence, which aligns with the Court of Appeal's direction that a breach of trust by a police officer will attract a stiff jail sentence absent exceptional circumstances. This does not mean that a court faced with some exceptional circumstances must decide between a jail sentence behind bars and a conviction. In Proulx, the Supreme Court recognized that in the right cases, exceptional circumstances might mean that a jail sentence can be served differently, in the community. This is one of those cases. In light of Officer Burke's exceptional background, placing him behind bars is not necessary. It may unravel his upfront work toward rehabilitation, displace him from his support network and return him to his community a truly broken man. I expect that a CSO for Officer Burke will carry the stigma of both a conviction and a jail sentence. It may deprive him of working as a police officer and engaging with his community in a way that he would prefer. It will have a measurable impact on him and send a message to police officers in his shoes who might be battling with issues that they cannot turn to crime and break the trust of their community.

[107] Like Justice Misener in Dominelli, Officer Burke's conduct was so contrary to his duties to uphold the law that it must be sternly denounced. I have considered whether a suspended sentence with a maximum period of probation and community service hours would be fit in lieu of a CSO but I would be diluting the seriousness of Officer Burke's crimes to drive a specific result. That would be a legal error. I agree with the sentiment in Dominelli: "Any sanction less than a sentence of imprisonment is inadequate to protect the rule of law from the corrosive effect of such conduct". I say this even with the presence of the mitigating factors in this case. For this reason, a suspended sentence, even for Officer Burke, would be too lenient and diminish the confidence in the administration of justice. But, a CSO for a well-informed member of the public who understands that a CSO is a jail sentence, will not have this effect. I recognize that a CSO for a police officer who breaches the trust of the public would be an exception not the norm. However, Officer Burke's case is an exceptional one. In my opinion, it is a proportionate response in this case.

[108] I have considered the Crown's submission for a CSO in the range of 12-15 months. I did not have the benefit of any defence submissions on the length of the CSO but I would imagine the defence would remind me of the principle of restraint which requires me to impose the minimum sanction that will satisfy the overriding principles of denunciation and general deterrence within the context of the exceptional circumstance of Officer Burke's addiction and PTSD diagnosis. In Dominelli, the officer received a 9 month CSO but I don't know why. In Cook, Justice Casey Hill imposed an 18 month jail sentence (not a CSO) for a police officer who stole drugs from a crime scene which resulted in 10 cases being compromised. Officer Cook did not suffer from a drug addiction and was motivated by greed. The differences between Cook and this case justify a jail sentence in the community but the seriousness of the crimes are not entirely dissimilar. While I am attracted to the wisdom of Justice Hill who has a reputation as an eminent legal scholar, again, I return to procedural fairness and settle on 12 months as the length of the CSO in this case. The upper range of 15 months is not unreasonable but 12 months is a fair and proportionate sentence in this case. To be perfectly clear, but for the exceptional mitigating circumstances of Officer Burke's addiction and PTSD diagnosis I would have imposed a jail sentence behind bars as was the result in Cook.

[109] I will invite submissions from the parties as to appropriate optional conditions on the CSO including any reasonable exceptions to the terms.

[110] Given the length of the CSO, I am inclined to only impose a limited probation order to follow the completion of the CSO. The Crown submits the probation order should be for 1-2 years but in my view, Officer Burke will be well on his way towards rehabilitation during the life of the CSO. For this reason, a 6 month probation order is appropriate. A probation order is strictly rehabilitative in scope and will assist Officer Burke remain on the right path after his freedom is restored from the CSO. I will invite submissions on optional terms in the probation order as well.

VI. CONCLUSION

[111] In conclusion, I have determined that a fit sentence in this case is a 12 month CSO followed by a 6 month probation order.[1] Accordingly, I have accepted the Crown's submission in this case while rejecting the careful and able submissions of Mr. Black. This is an exceptional result in an exceptional case. I have no doubt that Officer Burke was at one point in his career, an exemplary police officer before he became addicted to drugs and engaged in serious criminal conduct. Officer Burke seriously broke the trust of his community and will have to work for the next year in his life to regain it. The court encourages him with this effort and implores his family and community to continue to support him in this regard.

[112] I would like to thank both counsel for their professionalism in this very challenging sentencing decision.

Dated in Lindsay, this 12th day of November, 2019

Mr. Justice F. Javed

[1] After hearing submissions, the parties agreed to structure the CSO with 6 months of house arrest with the standard exceptions followed by 6 months of a curfew.