Court File and Parties

DATE: April 19, 2021 Information No.: 19 – 5373 ONTARIO COURT OF JUSTICE (at Hamilton, Ontario)

B E T W E N:

HER MAJESTY THE QUEEN

- and -

DARREN SMITH

Reasons for Sentence

Counsel: Mr. G. A. Leach, for the Crown Mr. K. J. McGilly, for Darren Smith

Before: NADEL, J.

Introduction

[1] In R. v. Smith, 2020 ONCJ 5723, after a trial in which the Crown proceeded summarily, I found Darren Smith guilty of the offences of forgery and uttering committed in tandem on two separate occasions. At the times of his malfeasance Darren Smith was a police officer with the Hamilton Police Service, (HPS). The HPS required a form, called a “destruction waiver,” to be signed by a resident surrendering an unwanted firearm. The HPS does not want people bringing firearms into police stations. So, when someone calls about surrendering a gun, they’re told to hang onto it until an officer is sent to fetch it from them. Mr. Smith was sent on two such details. On each assignment he committed a couplet of crimes. In each case he did not get a destruction waiver signed. Rather, he forged the required signature and then he uttered the forgery that he had created to his police service.

[2] On each assignment an effective and authentic signature could easily have been obtained by him. He obtained no benefit from his actions beyond saving himself the inconvenience of reattending at the homes of the surrenders of the weapons to obtain the required signatures. Even then, that inconvenience would have been remunerated as part of his regular shift duties as a patrol officer.

[3] Although Mr. Smith had no prior record, the Crown advised me that a conditional sentence might be fit and so I ordered a pre-sentence report. The following headings and information come from that document which was the only exhibit filed on this sentencing. [1]

Darren Smith’s Family / Personal History

[4] Darren Smith had what he described as an “average and nondescript” upbringing by two parents, each of whom worked. His life was devoid of trauma or abuse. He played a variety of sports for school teams as well as well as in “rep” leagues. Through his sports involvement, he developed a team mentality which he felt transferred well to his role as a police officer.

[5] He has some post-secondary school education but did not complete a college programme. He moved back to his hometown, Guelph, where he married his first spouse. That union lasted for seven years and produced two sons, now aged eleven and thirteen. He has been divorced for approximately seven years, has joint custody of his sons, and voiced no concerns with that arrangement. He currently lives with his parents in Guelph and his boys stay there half of the time.

[6] Mr. Smith developed a second union, which has also failed, although he indicated that he would be willing to attempt to resurrect it if his partner was willing. She currently resides in the home they own jointly with her children from her prior union.

[7] He ascribed the failure of his formal marriage to job related travel and stresses. He ascribes the turmoil in his second failed relationship to this legal troubles and abuse of alcohol. In November of 2019 he moved out of their home after he was brought to hospital by police due to concerns about his mental state. No particulars of the incident were provided in the PSR other than that he was not detained under the Mental Health Act.

[8] “The subject declined to provide any familial collateral contacts for the purpose of this report. While he is grateful for the support of his parents, he does not believe that they have an accurate understanding of the Court process and the depth of the situation that he is coping with. He further declined to provide contact information for his partner, noting that they have had limited contact since his finding of guilt. While the subject’s sister resides locally, his contact with her is limited and he is unsure whether she is aware of his position before the Court.”

Education / Employment

[9] The subject’s peers describe him as an active and devoted father to his sons. His psychotherapist, Amber Stephenson, advised the probation office that although he receives material support from his parents by way of a roof over his head, she questioned whether they provide emotional or mental support. It seems to me that given Mr. Smith’s failure to confide in his parents – (“While he is grateful for the support of his parents, he does not believe that they have an accurate understanding of the Court process and the depth of the situation that he is coping with.”) – his lack of communication with them may be the cause of his perceptions about their failure to provide him with emotional support. Despite my wonderment Ms. Stephenson said that Mr. Smith is working towards improving interpersonal relationships with family members.

[10] Mr. Smith reported that he attended a university business program for one year and then withdrew from that programme and entered college for Police Foundations. Despite being two credits short of completing the program, at the age of twenty-four he was hired as a Special Constable by the local police force in Hamilton.

[11] He said that he enjoyed policing and reported holding increasingly senior positions over time. Between 2010 and 2013, he was seconded to the OPP’s provincial anti-terrorism team and described that posting as the apex of his policing career, albeit his personal life began to unravel due to his hectic work and travel schedule. A further consequence of that assignment was a growing reliance on alcohol as a means of coping with the stresses of his job.

[12] He characterized his transition back to uniformed police work with the HPS in 2013 as difficult for two reasons: first, the breakdown of his marriage and second, what he said was a lack of support from his superiors – that after his three-year “the brotherhood was gone”. He began to dislike his job and dreaded going to work. His reliance on alcohol increased and he felt “every aspect of (his) life was falling apart”.

[13] At this point in the PSR, the writer broached Mr. Smith’s excuse or rationalization for his crimes. “The subject explain[ed] that he and his colleagues were inundated with priority calls and for this reason administrative duties were not a priority for them . (sic, emphasis not in the original) The subject believes that he was targeted by his superiors and that requests for support were denied or ignored.” That belief seems to me to be belied by the programming that was provided to him.

[14] Mr. Smith told the pre-sentence reporter that he was present at a number of “sudden death” calls near the beginning of 2018 that contributed to the deterioration of his mental health. He reported that he went on leave in November of 2018 and that he is presently on permanent disability as a result of a diagnosis of Post-Traumatic Stress Disorder.

[15] Two former colleagues, identified in the PSR, reported that Mr. Smith was “a phenomenal police officer”, and as someone who has “a sixth sense” for police work. Both stated that he was harassed by superiors in the workplace, and that it was clear to them that he was not liked by his superiors. One of these colleagues worked the same shift for several years and described Mr. Smith as a reliable, loyal and hard-working individual.

Substance Use / Addictions

[16] Mr. Smith reported no current or prior concerns with illicit substance use, other than alcohol. Alcohol abuse was clearly identified as a problem in the PSR. Mr. Smith acknowledged an increasing reliance on alcohol as a coping mechanism for the past decade. Indeed, he conceded that his use of alcohol became particularly problematic after returning to uniformed police work around 2013. He reported having been “counselled” (sic) by his employer for his alcohol use in 2017. In 2018 he was called in to speak with his superiors after having been present for a high number of sudden deaths at work. He said that he unsuccessfully requested time off so that he could access help. However, according to the PSR he did access counselling through his employer’s employee assistance programme.

[17] “In the spring of 2020, the subject attended and completed a nine-week residential treatment program at Bellwood Treatment Centre. The subject completed the Concurrent Trauma and Addictions Program, a program for first responders who have been diagnosed with Occupational Stress Injuries and/or Post Traumatic Stress Disorder and who also struggle with substance use. Although he remained sober throughout treatment, he reports to have relapsed on alcohol shortly after his discharge from the facility”.

[18] Mr. Smith “presently consumes approximately six alcoholic beverages daily. He explains that alcohol helps him to “numb” and cope with symptoms of Post Traumatic Stress Disorder. His goal is to be sober, and he is presently working towards this goal with the assistance of his Psychotherapist and other supports.”

Character / Behaviour / Attitude

[19] Mr. Smith acknowledged that “he fell behind on his administrative duties due to his increasing workload at work and recognizes his error in forging signatures on required paperwork. He states that he is remorseful and that he ‘know(s) it was the wrong thing to do’. …[H]e regrets that the witnesses were involved in a trial, acknowledging that it must have been difficult for them and that he ‘feel(s) terrible’. The subject expresse[d] concern over the potential impact that a conviction may have on future employment opportunities.”

[20] A letter from Dr. Jane Storrie, dated February 3, 2021, contains a diagnosis of post-traumatic stress disorder. Mr. Smith had been seeing Dr. Storrie’s colleague for psychological counselling from June 21, 2018 until March 5, 2020. Dr. Storrie took over his care on October 6, 2020 and the subject was seen weekly until November 27, 2020. He returned to treatment on January 19, 2021. The subject is not presently taking any medication for mental health ailments.

[21] Mr. Smith attended a six-day program through Project Trauma Support in September of 2020, and he remains connected with this peer led support group in Hamilton. This programme is for first responders diagnosed with PTSD.

[22] According to the PSR, he has also been attending weekly telephone appointments with Psychotherapist Amber Stephenson since October 21, 2020, having attended nineteen sessions to date. Ms. Stephenson informed the pre-sentence reporter that the focus of their sessions was on trauma and alcohol use, and their attention at present is on preparing the subject for sobriety. She notes that he is always engaged and willing to participate in their sessions. She states that he has some fear and uncertainty about what the change process will look like, which is common for those who have experienced trauma. She further notes that the subject is making some positive progress. Currently sessions are paid for by the Worker’s Safety and Insurance Board (WSIB), and the subject has been approved for payment until May 21, 2021. Ms. Stephenson is required to send progress reports to WSIB every six weeks and is able to apply for an extension should the subject wish to continue in treatment.

The Submissions of the Crown

[23] The Crown’s position is for a suspended sentence on all counts together with 75 hours of community service. The actions of Mr. Smith could be characterized as someone not doing what he was paid to do. He was paid to follow up on his assignments and he did not do so. He committed malfeasance instead. So, by way of retribution, (as properly understood in law) [2] , and by way of restitution to the community the Crown seeks these hours of community service.

[24] The Crown also asked for a no contact order for the three civilian witnesses who testified but Mr. Leach observed that it seemed to him, (and I agree), that those witnesses did not appear to bear any ill will towards Mr. Smith. Moreover, there is no suggestion that Mr. Smith has had any contact with those witnesses since he attended at the homes identified in my reasons for judgment. In those circumstances, especially given the passage of time since Mr. Smith committed his crimes, I see no need for such an order, if I was to otherwise accede to the Crown’s submission.

[25] Based upon the cases submitted by the defence, the Crown concedes that a discharge is a possible sentence for offences committed by a serving police officer committed during active duty. The Crown further concedes that using the test enunciated in Fallowfield, (the citation appears infra), a discharge is in the best interests of Mr. Smith.

[26] But, the Crown submits that the granting of a discharge on these facts and Mr. Smith circumstances, is contrary to the public interest.

[27] In considering the public interest the Crown points to the fact that he committed these crimes on two occasions and those two occasions were separate and distinct assignments during the course of his duties as a sworn police officer. His actions were intentional, and they amounted to malfeasance in the performance of his duties.

[28] The Crown opposes a discharge and submits that the granting of a discharge would be contrary to the public interest because these crimes bring the administration of justice into disrepute.

[29] Mr. Leach stresses that the public is entitled to expect that sworn police officers will abide by the law in the course of their duties.

[30] The caselaw confirms that when officers commit crimes in the course of their duties it tarnishes the entire police force of which that officer is a member. The public is entitled to both expect and see fit sentences imposed for crimes such as these, especially given their repetitive nature.

[31] By holding officers to account for their behaviour, when a member of the public deals with an officer, (by the side of the road for example), that member of the public can have confidence that the police officer they are dealing with will do what is expected of them, by honouring their oath of service.

[32] In addition, Mr. Leach suggested that a failure to sanction Mr. Smith fitly will tarnish all police generally. Additionally, a failure to fitly sanction this officer might encourage other police officers to exhibit less rectitude in their approach to the documentation that they are required to create or complete in the course of their duties.

[33] The Crown’s position as re-stated by me during Mr. Leach’s submissions was to the following effect. Failing to sanction Officer Smith with convictions would bring the administration of justice into disrepute because it would trivialize his crimes. A discharge would diminish and devalue the crimes that he committed. Doing that would bring the administration of justice into disrepute because people would likely have less respect for police officers if Officer Smith’s punishment was unfit.

[34] In support of his submissions Mr. Leach referred to paragraphs [76] to [78] of R. v. Blais, 2009 QCCQ 451, which provides that the commission of a criminal offence by a police officer is a highly aggravating factor. Further, members of the public must be assured that courts will always consider this factor. Finally, when an officer commits a crime it is damaging to the image of policing and the public can lose confidence in police when officers commit offence that are not properly sanctioned.

[35] In addition, Mr. Leach quoted from R. v. LeBlanc, 2003 NBCA 75 to similar effect at paragraph [27]: “Police officer 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.” That panel from the New Brunswick Court of Appeal went on to characterize the conditional discharge granted to LeBlanc, at paragraph [28] as being an unfit sentence in his case: “… the conditional discharge granted at trial is woefully inadequate as a means of promoting respect by police officers, and other law enforcement personnel, of their oath of office. It is a sentence without any deterrent value.” [3]

[36] A further aggravating factor highlighted by the Crown was that Officer Smith’s crimes were repeated. He demonstrated no insight or appreciation of the magnitude of his malfeasance. He simply, indeed blithely, repeated the same crimes when presented with similar circumstances. As Mr. Leach noted, the assignment that Officer Smith was directed to complete was one of the simplest tasks that could be assigned to a police officer. Despite that he failed to honour his oath, to uphold the law. Rather, he compounded his malfeasance. His repetition of his crimes of forgery and an uttering invite and indeed requires a denunciatory and deterrent response from the Court.

[37] Mr. Leach accepted that there are findings in some of the case that a discharge can have a deterrent effect due to the fact that a charge was laid, a public trial was held and a finding of guilt was publicized. Nonetheless, he maintained the position espoused by the Court of Appeal in LeBlanc: that discharging Officer Smith would be an unfit sentence on the facts and circumstances of this case.

[38] Moreover, Mr. Leach contended that the prospect of Officer Smith being discharged by the HPS, if convictions were registered, was a matter of speculation; that no evidence has been adduced to support that prospect. Hence, that prospect is not a collateral consequence that the Court is entitled to consider in arriving at fit sentences in this case. To Do so would be acting on a speculation.

The Submissions of the Defence

[39] Mr. McGilly provided written sentencing submissions together with a casebook of authorities that he asked the court to consider, in addition to his oral submissions. He noted that the Crown proceeded summarily and that discharges are an available sentence. Mr. McGilly asked that Officer Smith be discharged absolutely on all counts.

[40] I shall review the cases that he provided later in these reasons. From those cases Mr. McGilly submitted that all of the following statements of law can be gleaned:

• the fact that an offender is employed as a police officer does not preclude that offender from being discharged;
• the fact that that police officer was on active duty when they committed an offence does not preclude that offender from being discharged;
• general deterrence to other police officers can be achieved by the arrest and trial of the offender;
• a discharge can have the same denunciatory and deterrent effect as a suspended sentence when there has been an arrest, trial and the public notoriety and attention that the trial of a police officer attracts; and,
• a sentence must be an individualized and fit sanction pursuant to the statutory provisions of the Criminal Code.

[41] So far as the offences are concerned, while it is conceded that signing someone’s name to an authorization was not acceptable behaviour, the investigation into Officer Smith was not commenced due to a complaint by any of the residents who sought to surrender the firearms in question.

[42] This investigation was commenced while Officer Smith was on leave from the HPS due to a leave granted by the Workplace and Safety Insurance Board, as a result of a post-traumatic stress disorder that Officer Smith was suffering from, which arose out of his service as a police officer.

[43] These were not offences motivated by greed, personal gain or a desire to harm anyone. These offences were not committed to pervert the course of justice.

[44] Officer Smith did not receive any professional, financial or personal gain from his crimes of forgery and uttering.

[45] Significantly, Officer Smith was on stress leave and seeking professional help for his mental distress before he was ever aware of the investigation commenced by the HPS. His insight into his need for help and his attempts to obtain that help were honestly held and predated any knowledge that his work product was being investigated or that these crimes had been discovered.

[46] In short the defence position is:

• any need for general deterrence has been met by the arrest, trial, finding of guilt and publicity surrounding this prosecution;
• specific deterrence is not required because Office Smith, without intervention from outside sources, identified his need for treatment both for stress and for alcohol abuse and sought it out well prior to being investigated, let alone charged;
• given his ongoing treatment no probation order is required to keep him in therapy;
• while it is true that Officer Smith committed offences on two occasions, he was suffering from a form of mental illness at those times, a form of mental illness for which he sought and continues to undergo therapy.

[47] In all of these circumstances absolute discharges on all counts is a fit disposition.

Discussion

[48] In R. v. C.A.M., 1996 SCC 230 [4] Chief Justice Lamer summarized the duty of a sentencing judge in these words:

The overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a “just and appropriate” sentence, which reflects the gravity of the offence committed and the moral blameworthiness of the offender.

[49] That fundamental principle of sentencing is now enshrined in s. 718.1 of the Criminal Code: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[50] S. 718 of the Criminal Code declares that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. Just sanctions are designed to, among other goals:

• denounce unlawful conduct and the harm done to the community that is caused by unlawful conduct;
• deter the offender and others from committing offences; and,
• promote a sense of responsibility in the offender and promote an acknowledgment of the harm done to the community.

While I shall quote the whole of s. 718 section later in these reasons, it seems to me that these three bulleted goals are the ones most in play in this sentencing.

[51] On behalf of the Crown, Mr. Leach provided me with several cases to consider. The thrust of this series of cases was that a failure of a police officer to honour their oath and to uphold the law tarnishes all police and reduces respect for the law. It is contrary to the public interest to discharge a person engaging in that type of behaviour.

[52] The first case the Crown pointed to was R. v. Morton, 2019 ONCJ 4592, a sentencing decision by H. Borenstein J.

[53] Morton was a successful and talented lawyer. [5] He forged a divorce decree and used it to obtain a marriage licence and then went through a marriage ceremony with his law clerk. He pleaded guilty to bigamy and forgery. The Crown sought a conditional sentence of six months. The defence sought a conditional discharge.

[54] Despite not being an offence motivated by financial gain Justice Borenstein highlighted that Morton was a lawyer and that he abused the legal system that he was obliged to support. Despite Morton being a first offender, despite his plea of guilty and despite his expressions of remorse, Justice Borenstein found that the aggravating features of the case made a discharge an unfit sentence and imposed a six-month conditional sentence along with 50 hours of community service.

[55] Similarly, Mr. Smith was not motivated by financial gain and he, too, was obliged to uphold the legal system, including the Criminal Code. Moreover, Mr. Smith cannot point to a guilty plea in mitigation of his crimes. On the other hand, his forgeries and utterings were not committed in furtherance of any other independent criminal offence, (i.e., bigamy). [6] Moreover, his crimes were designed to achieve the very purpose sought to be achieved by the parties who surrendered the weapons to the HPS and the very purpose that the HPS sought to achieve upon receipt of those weapons.

[56] The next case submitted by the Crown was R. c. Attic, 2018 QCCQ 2508, a decision of Lafrenière JCQ. Attic was a police officer with the Sûreté du Québec. After being committed to trial but before his trial date, he pleaded guilty to forgery. He admitted that he had issued 523 speeding tickets in which he deposed to having been trained to use a laser radar device, when he had no such training.

[57] The positions of the Crown and the defence paralleled Morton, viz.: a conditional discharge that would save Attic’s employment or a conditional sentence that would end his career as a police officer.

[58] Justice Lafrenière noted that Attic’s crime was not near the highest end of the spectrum of criminal gravity, but his actions occurred during the performance of his duties as a police officer. The same can be said in this case – Mr. Smith’s crimes occurred during the performance of his duties as a police officer; albeit his delicts being very far away from the serious end of the spectrum of criminal gravity.

[59] Attic dealt with substantially more serious crimes than the ones at bar, by virtue of the number of incidents involved, by virtue of the timeframe over which those lies were perpetrated and most significantly, in my view, by virtue of the effect Attic’s lies had on denying hundreds of defendants an arguable defence.

[60] As Justice Lafrenière noted at paragraph [22]: “… litigants expect the police to act with honesty, integrity and justice, since they ensure their protection and they cannot accept that one of their protectors engages in criminal acts.” And, at paragraph [38]: “The accused occupies a function of authority, coercion and justice. He must be above all suspicion of dishonesty and deception. We cannot allow him to fabricate false documents. Yet he commits this offence in the performance of his duties over a long period of time and repeatedly. Deterrence, both general and specific, is required so that litigants maintain confidence in the function of police.” These comments are apposite to this sentencing, albeit with substantially less vehemence given the particulars of Mr. Smith’s crimes.

[61] Justice Lafrenière went on at paragraph [39] to highlight a persuasive comment to the same effect from the Court of Appeal for Quebec, viz.: “The offence committed by the appellant called into question his integrity while exercising the function of a peace officer, and was such as to undermine the very foundations of this function as well as the confidence of the public.” A similar comment, pointed to by Mr. Leach, from the New Brunswick Court of Appeal followed at paragraph [41]: “Police officers have the opportunity almost daily to cross the legal limit and engage in prohibited acts. The public count on them to resist temptation and count on the court to deal firmly with those who deviate from the right path. …”

[62] Justice K. Moore made the same point at paragraph [2] of R. v. Duke, 2018 ONCJ 946: “When a police officer commits an offence against the very community he serves, this erodes the respect and the trust placed in that officer. In addition, such actions have the potential of tarnishing the reputations of those police officers who continue to uphold their oaths, and who continue to act with integrity and honesty as they execute their duties.” [7]

[63] In light of these kinds of comments it is not surprising that Justice Lafrenière imposed a conditional sentence, as sought by the prosecution. Nor is it surprising that this sentence was upheld by Quebec Court of Appeal in Attic c. R, 2018 QCCA 1773, wherein leave to appeal was not granted to Attic.

[64] Another authority provided by the Crown was R. v. Atleo, 2014 BCPC 310, a decision rendered by Justice T. Gouge. Atleo, a police officer, pled guilty to one count of uttering a forged document in a non-police capacity, during the dissolution of his domestic relationship. The Crown sought a suspended sentence while the defence asked for a conditional discharge.

[65] Justice Gouge noted that while there are reasonable public policy objectives help to rationalize why a discharge was or was not granted to a particular police officer in a particular case, he took pains to note that there is no “single set of public policy imperatives” that impels or explains the results of every case. His Honour found that result to offend s. 718.2(b) of the Criminal Code which requires parity among similarly situated offenders. Hence, Justice Gouge set himself the task of identifying such a set of governing principles.

[66] Atleo first forged and then uttered his estranged spouse’s signature on a vehicle transfer after the couple separated. His Honour was unable to find that Atleo received no financial benefit from his actions.

[67] He concluded that Atleo’s ability to form and maintain healthy and stable adult relationships was adversely affected by his and his parents residential-school experiences. In addition, the court noted that Atleo had already suffered internal RCMP disciplinary sanctions that included a loss of nine days pay and a letter of reprimand that was placed in his personnel file.

[68] His Honour then turned to a discussion of the discharge provisions of the Criminal Code.

[69] At paragraph [31], Judge Gouge noted that before a discharge can be granted the sentencing court must “enquire whether, and if so how, a grant of a discharge might be injurious to the public interest.” However, before that question is reached a sentencing court must first determine whether it is in the best interest of an accused that they should be discharged. While His Honour noted that that is not invariably the case [8] given our Court of Appeal’s discussion of that pre-requisite in R. v. Sanchez-Pino, referred to later, I find that it would be in this offender’s best interest to be discharged, rather than to be saddled with a criminal record of conviction.

[70] In determining when a discharge is “not contrary to the public interest” His Honour noted that “public interest” is not defined in the Criminal Code. He turned to R. v. Fallowfield, [1973] B.C.J. 559 (BCCA) for assistance. There that Court of Appeal noted that:

• while one aspect of the public interest is general deterrence, which must be given due weight, the concern does not preclude the judicious use of the discharge provisions;
• the power to grant a discharge should not be exercised as an alternative to probation or a suspended sentence; and,
• a discharge should not be granted routinely to any particular offence.

[71] Justice Gouge concluded, at paragraph [35], that “the factors which Parliament intended judges to consider in determining whether a discharge would not be contrary to the public interest must be those identified as the objectives of sentencing” in the Criminal Code. As he put it, “in any individual case, a discharge would not be contrary to the public interest unless it would materially inhibit the achievement of one or more of those objectives. Only in that way can a judge adjudicate the question by refence to the public interest as defined by Parliament.” (emphasis added)

[72] He also took note of the advice of the Alberta Court of Appeal in R. v. MacFarlane, 1976 ABCA 6, [1976] A.J. No. 429, where the court noted that one must consider:

• (i) the nature of the offence;
• (ii) the prevalence of the offence;
• (iii) whether personal gain was a motivating factor in the commission of the offence;
• (iv) the value of property at issue in a property crime;
• (v) whether the crime was impulsive as opposed to premediated; and finally,
• (vi) whether the offence ought to be a matter of record to protect others from that offender in the future.

[73] Justice Gouge then turned to sentencing principles that apply to police officers. The aggravating feature of Mr. Smith’s crimes is that he committed crimes in the performance of his duties while being a sworn police officer. As Justice Gouge noted, at paragraph [39], “[r]espect for law enforcement officers contributes to respect for the law, and so tend to promote law-abiding behaviour.” That said, neither in Atleo nor in this case did the offender take advantage of his official position or powers in committing his crimes.

[74] Justice Gouge then went on to consider collateral consequences in Atleo’s case. Rather than repeat his discussion I rely upon a discussion of that concept taken from R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.

[75] There, the court examined immigration issues as a collateral consequence of sentencing. While that concern has no bearing on this sentence the principles identified in Pham do need to be considered. At paragraphs [8] to [12] and [14] and [15] Justice Wagner discusses how to appropriately weigh the collateral consequences produced by the imposition of a sentence or sentences:

[8] … the correctional imperative of sentence individualization … inform the sentencing process. This Court has repeatedly emphasized the value of individualization in sentencing: (citations in the original) Consequently, in determining what a fit sentence is, the sentencing judge should take into account any relevant aggravating or mitigating circumstances (s. 718.2 (a) of the Criminal Code), as well as objective and subjective factors related to the offender’s personal circumstances.

[9] As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2 (b) of the Criminal Code). In other words, “if the personal circumstances of the offender are different, different sentences will be justified” (citation in the original).

[10] Ultimately, the sentence that is imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The sentence must have one or more of the objectives of denunciation, general and specific deterrence, separation of offenders from society if need be, rehabilitation, reparations to victims for harm done to them, promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community (s. 718 of the Criminal Code).

[11] In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2 (a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718 (d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation. (emphases not in the original passage)

[12] However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. (emphasis not in the original passage) Professor Manson explains this as follows:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. . . .

The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender’s ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence.

(The Law of Sentencing (2001), at pp. 136-37)

[14] The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. (emphasis not in the original passage)

[15] The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.

[76] Ultimately, after extensive discussion, Justice Gouge granted Atleo a conditional discharge. [9]

[77] I turn next to the authorities provided Mr. McGilly on behalf of the offender. By way of anticipation most of those cases turn on the lack of any need for specific deterrence to the offender coupled with an expansive view of the public’s interest being better served by a productive citizenry. Mr. McGilly provided me with eight cases. In many of them police officers or correctional officers committed crimes and yet were discharged. Proceeding chronologically, the first case offered by the defence is R. v. Sanchez-Pino (1973), 2 O.R. 314 (C.A.).

[78] Ms. Sanchez-Pino pleaded guilty to theft under $200 after shoplifting several items from a department store. She stole a number of different items from a number of different spots in the store. She paid for two trivial items and then carried out the stolen ones in a bag that she had brought for that purpose. The items were valued at $78 [10]. She was stopped and the stolen items were recovered.

[79] Sanchez-Pino had an exemplary background and a conviction would preclude her from continuing in her chosen career. [11]

[80] The discharge provisions of the Criminal Code were novel at that time. The current provisions of s. 718 et seq. were not then part of the Criminal Code. Moreover, the characterization and proper weight to be accorded to any collateral consequences of sentencing, (as explained by Chief Justice Wagner as set out earlier in these reasons), had yet to be voiced in that complete form or by such controlling authority.

[81] Justice Arnup JJ.A. construed the new discharge provisions at paragraph [16]:

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

[82] Turning to the first prerequisite that a discharge must be “in the best interests of the accused” Justice Arnup, at paragraph [17] defined that phrase to mean:

that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions.

[83] He then when on in the same paragraph to at least partially define what not being “contrary to the public interest” meant:

One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence — a standard part of the criteria for sentencing.

[84] Given the novelty of this new sentencing tool, Justice Arnup provided further guidance; viz.:

18 … it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to the public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

19 To attempt more specific delineation would be unwise, and might serve to fetter what I conceive to be a wide, albeit judicial, discretion vested in the trial court. That court must consider all of the circumstances of the accused, and the nature and circumstances of the offence, against the background of proper law enforcement in the community, and the general criteria that I have mentioned.

[84] Despite the wide discretion vested in the sentencing court, the Court of Appeal dismissed Ms. Sanchez-Pino’s appeal. At paragraph [20] Justice Arnup identified several circumstances that precluded the granting of a discharge of any sort. Those factors were:

• The appellant was a mature woman, of high educational and intellectual attainment.
• The theft was not the result of a sudden momentary impulse.
• She stole a number of articles, from several different places in the store, stuffing them in a shopping bag obviously brought along for the purpose.
• It was not a matter of momentary forgetfulness, for she did pay for two trivial items, and stole the rest.
• The widespread incidence of shoplifting, mentioned by the Crown attorney as prevalent in Metropolitan Toronto — and obviously known to the trial Judge — is indeed a matter of public notoriety.

[86] The first, second and fourth of these considerations can be seen as analogues in Mr. Smith’s case.

[87] The next defence case, chronologically, is R. v. Blahey (1982), 7 W.C.B. 214, a decision of Justice I.A. Vannini, sitting in what was then styled the “County Court”.

[88] Blahey was a well-respected and decorated police officer of long standing. In his role as the local firearms officer for OPP detachment in Blind River, he earned a financial benefit by, among other delicts, dealing in firearms without properly registering them in his name before transferring them to lawful buyers. The number of offences and the time-span over which he committed his crimes were substantial.

[89] Despite Justice Vannini’s articulation of the serious nature of the crimes committed by Blahey, and despite the Crown characterizing these multiple offences as serious [12], Blahey was granted absolute discharges.

[90] Justice Vannini arrived at this result by declaring that a discharge could provide the required deterrent effect that the imposition of a custodial sentence or a fine would provide in Blahey’s circumstances. A major component of that conclusion was the publicity that case had received within the community of Blind River. Equally, Blahey’s prior probity, bravery and civic-mindedness were weighty counters in his assessment.

[91] I note that Mr. Smith’s case has been publicized several times in the major local newspaper in Hamilton, The Hamilton Spectator. In addition, Mr. McGilly noted in his submissions that Mr. Smith had been pilloried, so to speak, in what can loosely be termed social media.

[92] Of even greater import in Justice Vannini’s assay was the prospect of Blahey being forced out of policing by the imposition of convictions:

28 Having regard to his antecedents and the high regard in which he is held in the community of Blind River, the entry of a conviction for any of the offences may have significant repercussions in relation to his continuing as a member of the force or qualifying for a position in any other police force, but if he's permitted to continue with the Provincial Police, he would be able to continue to serve the public.

29 A conviction would brand him a criminal, that is, a person with a criminal record for years to come and be a constant humiliation and embarrassment to himself as a long time police officer with an otherwise exemplary record of performance.

30 These repercussions and consequences would be cruel and harsh and in themselves a punishment in excess of that warranted in all of the circumstances.

[93] In short, this collateral consequence taken together with the lack of any need for specific deterrence convinced Judge Vannini that an absolute discharge was appropriate on the facts and circumstances in this case.

31 For these reasons, and because the deterrence of this particular accused is not a relevant consideration, I consider it to be in his best interests not to enter a conviction against him. Nor would it be contrary to the public interest not to convict him because the element of general deterrence of other police officers has been satisfied by his public trial, by his confessions of guilt, the embarrassment to himself and to his family and because in all of the circumstances it would not depreciate the seriousness of the offence or undermine the factor of general deterrence. (emphasis not in the original passage)

[94] The next defence case in time was R. v. Kidd, (1998) O.J. No. 1739, a decision of Justice Hogg sitting as a summary conviction appeal court in what used to be styled the General Division.

[95] Kidd was a police officer. He responded to a scene and saw a complainant, (who was cuffed, although that fact was unknown to Kidd), push a taller and heavier female police officer. The push caused the officer to move some four feet. In response Kidd punched the complainant in the face. Kidd’s punch caused serious bodily harm. His conviction appeal was dismissed.

[96] As a result of this assault Kidd resigned from his 20-year policing career and took up real estate under a temporary licence. To protect his right to continue in that field, given the evidence of Kidd’s prior good character, Justice Hogg discharged Kidd.

[97] In arriving at this decision Justice Hogg weighed many considerations including:

• the deterrent and chastening effect of the trial process, per se;
• the lack of premeditation;
• the short duration of the act; and
• the fact that there was no continuation of any further illegal assaultive behaviour.

[98] As a result, at paragraph [20] Justice Hogg concluded that the principles of general deterrence did not forbid the imposition of a discharge which he found was clearly in the best interests of the accused.

[99] In the result the original sentence of incarceration was varied to a conditional discharge with 100 hours of community service.

[100] Once again, substantial deterrent weight was ascribed to the trial process.

[101] The fourth case provided by the defendant was R. v. Gray, [2000] O.J. No. 3596 (S.C.J.), a decision from Justice Casey Hill. Gray was a Peel police Sergeant in charge of administering paid-duty assignments for security, traffic control and the like.

[102] He created a company and used the inquiries made to him in his capacity at the paid-duty administrator to refer those requests to his company, which he staffed with retired as well as active-duty officers. In using these inquiries in this way, he committed a breach of trust and pleaded guilty, by indictment, to one count of doing so.

[103] Gray, like so many others in these kinds of cases, had lengthy and commendable service in policing. Gray’s policing and public service particulars were particularly outstanding. [13] In addition, he resigned from the police force just prior to being sentenced. Moreover, both he and his wife had serious health problems.

[104] Against the aggravating feature of his crime being a breach of the trust he was sworn to uphold, Justice Hill noted the mitigating effect of Gray’s pleas of guilty together with six other counter-balancing factors:

• The stigma of a finding of guilt for breach of trust;
• The loss of reputation and the blemish upon an otherwise outstanding policing career;
• The resignation from the Peel Regional Police Force Service;
• The legal fees incurred on a private basis, not indemnified by any police association;
• The embarrassment of being asked to resign from the Board of Directors of "Against Drunk Driving;" and,
• The adverse effect on the health of himself and his wife, brought about by these protracted proceedings.

[105] Given all of the foregoing, the Crown and the defence jointly submitted that a discharge ought to be imposed. In the result Justice Hill discharged Gray absolutely but added an elevated victim fine surcharge of $2,000 to reflect an element of general deterrence.

[106] The fifth defence case chronologically was R. v. McSween, [2002] N.S.J. No. 463, a decision of Justice LeBlanc sitting on that province’s Supreme Court. Here the offender appealed because the trial judge jumped a joint submission for a conditional discharge. Two passages from it will suffice:

31 I agree with the statement by the Ontario Court of Appeal in R. v. Cheung (1976), 19 C.L.Q. 281 (Ont. C.A.) (unreported;), cited in R. v. Hayes, [1999] O.J. No. 938 (Ont. Gen. Div.) at paragraph 32, that a suspended sentence is not necessarily a greater deterrent than a conditional discharge; sufficient deterrence should arise from apprehension, arrest and trial and the "public disgrace and jeopardy" they occasion. (emphasis not in the original passage)

32 In R. v. Daley (1997), 162 N.S.R. (2d) 222 (N.S. S.C.) a trial judge declined to follow joint recommendation in a case of spousal assault, stating that the "granting of a discharge would be contrary to the public interest because it would not satisfy the needs or the requirement for general deterrence when dealing with offences such as this". Moir, J. allowed the appeal, stating at paragraphs 12 and 28: [I]t is right to say that general deterrence must be emphasized "with offences such as this". If that was the Provincial Court judge's reasoning I could not and would not interfere. However, that is not what she said. As stated, I take her to have held that the public interest precludes conditional discharges in all cases of spousal assault. That, in my opinion, is an error in principle. . . . . . Almost since Parliament established conditional and absolute discharges as an instrument for dealing with criminal conduct, appellate courts recognized that discharges are available in the right circumstances for serious criminal misconduct and are not restricted to trivial cases or to strict liability offences where there was no real criminal intent. … (emphasis not in the original passage)

[107] Next, chronologically, is R. v. Gorman, [2009] N.S.J. No. 604, a decision of Provincial Court Judge Robert A. Stroud. Gorman used his RCMP issued credit card to fuel his personal car on many occasions. While waiting for his preliminary inquiry on that count he shoplifted from a Walmart outlet while his wife and child were present.

[108] He pleaded guilty by indictment to the gas theft count and guilty summarily to the shoplifting count.

[109] In considering Gorman’s counsel’s request for a discharge Justice Stroud thumbnailed a great number of sentence cases involving police officers.

[110] Like Justice Gouge in Atleo, Justice Stroud noted that the decisions respecting whether or not to grant a discharge to a police officer, are “all over the map.” That noted, His Honour gleaned the following principles from the cases:

1. Cases dealing with a prisoner assault have been treated as an abuse of power resulted in a range of sentences from conditional discharges to jail time. Generally, officers who received jail sentences (conditional or otherwise), were involved in the use of excessive force that resulted in injuries disproportionate to the degree of force used and were found to have a high level breach of trust based upon the officers' seniority and involvement in the incident. Those who received discharges had the lowest level of moral blameworthiness some of which involved provocation.
2. Offences against the administration of justice merit a denunciatory sentence because they strike at our system of a lawful society and require a clear message that it will not be tolerated.
3. As a general proposition, cases dealing with offences by officers outside the context of their policing duties hold that where the police officer is the sole offender or plays a central role in the offence, his position in the community may mean that a discharge is contrary to the public interest, even where the offence is not one against the administration of justice.
4. Cases involving breaches of trust involving the conversion of funds entrusted to police officers during the course of their duties or the theft of money or property from members of the public with whom they come in contact during the performance of those duties will only in the most exceptional circumstances justify a discharge.

[111] On the particular facts and circumstances of Gorman’s case Justice Stroud imposed a suspended sentence.

[112] While Justice Stroud’s taxonomy is useful it does not allow every particularized delict to be easily sorted.

[113] The penultimate defence case was R. v. Edmunds, 2012 NLCA 26. Edmunds was a correctional office who stole money from inmates. He pleaded guilty, in the Mental Health Court (a division of the Provincial Court), to one count of breach of trust by a public officer, contrary to section 122 of the Criminal Code, and two counts of theft under five thousand dollars, contrary to section 334 (b) of the Criminal Code. The Crown proceeded by indictment. Edmunds was sentenced to a conditional discharge and 24 months probation. The Crown sought leave to appeal Edmunds' sentence, which was granted; but the Crown’s sentence appeal was dismissed and, the sentence of a conditional discharge was upheld.

[114] The total value of the two thefts that he committed amounted to just under $400, which he repaid.

[115] Edmunds was eligible to have his case heard in that jurisdiction’s “Mental Health Court” based on the recognition that certain offenders who suffer from a mental disorder may commit offences as a consequence of their mental disorder or due to lifestyle issues related to their mental disorder. Entry into Mental Health Court required a diagnosis of one or more specific mental illnesses and a nexus between the illness and the offence. In his case, Edmunds’ application was supported by a report from his psychiatrist, who had been treating him for a major-depressive disorder and an acute stress disorder that was connected to the commission of the offences.

[116] Relying on its own prior precedent the Newfoundland Court of Appeal held at paragraph [18] that “for the Court to exercise its discretion to grant a discharge under s. 730 of the Criminal Code, the Court must consider that that type of disposition is: (i) in the best interests of the accused: and (ii) not contrary to the public interest. The first condition presupposes that the accused is a person of good character, usually without previous conviction or discharge, that he does not require personal deterrence or rehabilitation and that a criminal conviction may have significant adverse repercussions. The second condition involves a consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law. …”

[117] The Crown in Edmunds submitted that a conviction for this offence would not threaten Edmunds' livelihood. Mr. Edmunds replied that the effect of a conviction on his current employment or future prospects "is a matter of speculation". No evidence was apparently led on the issue. Notwithstanding, that court held that “a sentencing judge may take judicial notice of the fact that a criminal conviction will have a negative impact on a person's future, whether related to employment opportunities, travel, and so forth.”

[118] Significantly in this decision the court accepted, at paragraph [21] that “the mental illness of an offender will often be considered a mitigating factor in sentencing even though it is not of the sort that would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence. The focus in sentencing such offenders may properly therefore be placed on mechanisms that will promote rehabilitation and treatment, rather than on punishment. …”

[119] The position of the defence in Mr. Smith’s case is that his behavior was the consequence of ongoing mental disorders such that Mr. Smith’s moral blameworthiness is lessened and as a consequence the usefulness and appropriateness of specific deterrence is much reduced so that the Court may properly place greater emphasis on rehabilitation.

[120] As to the requirement that a discharge not be contrary to the public interest, the defence relied upon the following comments from Edmunds at paragraph [26]: “Further, "most people understand that the mentally ill require treatment and supervision, not punishment": see R. v. Valiquette (1990), 60 C.C.C. (3d) 325 (Que. C.A.), at 331. In my view, the public's confidence in the effective enforcement of the criminal law will not be undermined where the Mental Health Court emphasizes rehabilitation over deterrence in such circumstances.”

[121] Of course, it must be recalled that Mr. Smith did not plead guilty; rather, he elected to have a trial. Moreover, his case did not proceed in a mental health court.

[122] The final case relied upon by the defence was the decision of Justice D.A. Harris, in R. v. Murray, 2018 ONCJ 393. Murray was a young but accomplished police officer who became addicted to opioids due to injuries that he sustained. He stole exhibits to feed his habit and was charged with breach of trust.

[123] Justice Harris granted him a conditional discharge. He did so because he found it was in Murray’s best interest and not contrary to the public interest to do so.

[124] In arriving at that conclusion Justice Harris referred to all of the following caselaw. My quotes begin at the end of paragraph [23] of Justice Harris’ decision and follow from there [14]:

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

[24] In R. v. Meneses, the Ontario Court of Appeal took into account: (1) that the appellant was a widow with children; (2) that she had a good standing in the community; (3) that she had no criminal record; (4) that her misconduct was an isolated one and out of keeping with her past good character; and (5) that a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already had some expertise.

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

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

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

[28] In R. v. Carson, the Ontario Court of Appeal stated that: …an unnecessarily harsh impact on the appellant's prospects to continue his employment as a police officer … is a legitimate factor, among others, to be taken into account at a sentence hearing. Neither the appellant's personal interest nor the societal interest would be served by the imposition of a sentence, not otherwise warranted, that would preclude the appellant's continued employment as a police officer.

[29] There are of course limits on how far this may be taken. In R. v. Swierszcz, the Ontario Court of Appeal stated that “The fact that a person may suffer professional consequences cannot justify the imposition of a sentence that is outside of the appropriate range”…

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

[31] I also note the following comments by Justice Hill of the Ontario Superior Court of Justice in two summary conviction appeals: (1) Discharges are not restricted to trivial matters; (2) Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction; (3) Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration; (4) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge.

[125] I cannot and will not try to do further justice to the detailed and exemplary judgment that Justice Harris penned. Suffice it to say that based upon Murray’s biography and background when taken together with the circumstances that caused him to offend, Justice Harris found that a conditional discharge on a period of probation for three years including 240 hours of community service work was a fit sentence.

APPLICABLE LEGISLATION AND LEGAL PRINCIPLES

[126] The purpose, principles and objectives of sentencing are set out in Part XXIII of the Criminal Code.

Purpose of Sentencing

[127] As noted earlier, s. 718 of the Criminal Code is the starting point for all sentencing matters. This section states as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Other Sentencing Principles

[128] The other sentencing principles and objectives set out in section 718.2 of the Criminal Code, including aggravating factors, proportionality, totality and parity must not be ignored.

Proportionality

[129] The principle of proportionality set out in section 718.1 of the Criminal Code requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[130] The Supreme Court of Canada addressed the issue of proportionality in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13, at paragraph [37]:

The fundamental principle of sentencing, (i.e. proportionality), is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Criminal Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[58] The principle of proportionality reminds Courts that they have an obligation to assess not only the offence, but also the specific offender being sentenced. Sentencing is neither scientific nor formulaic. It requires a careful balancing of factors.

Parity

[131] Section 718.2(b) of the Criminal Code states that “a sentence should be similar to sentences imposed for similar offenders for similar offences committed in similar circumstances.”

[132] In R. v. Macri, 2012 SKPC 60, the Court stated, at paragraph [40] that, “[t]he principle of parity is embodied in s. 718.2(b) … dictates that an offender's sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Parity, however, does not mean uniformity. The proportionality principle, and the individual nature of sentencing means that disparity can exist where circumstances warrant. Such disparities, however, should not be egregious, or unjustified.”

[133] In order to ensure that the sentence imposed achieves the principle of parity, reference can be made to the many cases reviewed previously in these reasons.

Analysis

[134] Earlier in these reasons I discussed a number of cases in which the apposite principles were reviewed as well as the positions of the Crown and the defence. While it may go without comment I feel compelled to specifically note that on the spectrum of police malfeasance these crimes are clearly situate at the more modest end of that continuum. This is not a case of personal greed or moral turpitude or drug addiction. Consequently, I see no need to parse cases like R. v. Cook site or R. v. Rudge, [2014] O.J. No. 137 (S.C.J.) or even R. v. Duke, 2018 ONCJ 946, (despite relying heavily on its structure.)

[135] Before I can determine the appropriate sentence in this case, I must first review the mitigating and aggravating factors.

Mitigating Factors

[136] There are a number of mitigating factors in this case. The actions of Officer Smith occurred during and as a response to a period of personal and professional upheaval because of his inability to deal with the pressures of police work.

[137] He did not intend to cause anyone personal harm. He did not intend to obtain any personal gain. His crimes achieved the ends everyone sought to achieve but his means were criminal.

[138] No guilty pleas were entered despite the comments Mr. Smith made in his pre-sentence report. { “He states that he is remorseful and that he ‘know(s) it was the wrong thing to do’. …[H]e regrets that the witnesses were involved in a trial, acknowledging that it must have been difficult for them and that he ‘feel(s) terrible’.”} Accordingly, the mitigating fact of a plea or pleas of guilty is not available to Mr. Smith. That said, I pause to not that this is the lack of a mitigating fact. It is not an aggravating feature. As Mr. Joseph Dubeck, the doyen of the Hamilton criminal defence bar, in his day, used to say, “everyone is entitled to be properly convicted.”

[139] As noted by our Court of Appeal in R. v. Kozy (1990), 58 C.C.C. (3d) 500 at 506:

“… an accused should never apprehend that a penalty will flow from a plea of not guilty, …”

Mental Health Diagnoses

[140] Without meaning to double count this matter, there is cogent evidence from his treating therapist that Officer Smith was struggling with a post-traumatic stress disorder exacerbated by alcohol abuse developed from its use as a coping mechanism.

Family Support

[141] Officer Smith has the support of his parents and sons and there is at least a potential for a reconciliation with his currently estranged spouse.

Previous Good Character in the Execution of His Duties

[142] Given the evidence in the pre-sentence report and the evidence called at trial, (that these are the only aspects of malfeasance discovered despite a fine combing of two years of his duty books), Officer Smith was, prior to his emotional troubles a hard-working member of the HPS.

Impact of Conviction Upon Employment

[143] In my view the registering of convictions for these crimes will have serious consequences for Officer Smith, professionally, whether or not they are the basis for him be fired by the HPS. Indeed, prior to counsel beginning to make their sentencing submissions I was advised by Mr. McGilly that a notice of some sort of professional standards prosecution was served on Officer Smith.

Aggravating Factors

[144] There are aggravating factors to be considered in this case.

Potential Impact Upon Future Prosecution

[145] There was no evidence led that these crimes have jeopardized any existing investigations or prosecutions. That said, Officer Smith’s usefulness as an investigating police officer will surely be diminished due to the McNeil disclosure that will have to be provided concerning him in the future. On the other hand, he will be able to explain the nature of the facts in this case, which should substantially attenuate these convictions, for the purposes of McNeil disclosure.

Breach of Trust

[146] The most aggravating feature of these crimes is the fact that he committed crimes while performing active duty as a sworn police officer. All of the concerns highlighted by Mr. Leach on behalf of the Crown speak to that factor.

Potential Impact on the HPS and on the Administration of Justice

[147] As Justice Moore said in Duke at paragraph [114]: There may be those who speculate on the honesty and integrity of other police officers, and of the judicial system itself, as a result of Officer Smith’s actions. But, as Justice said at paragraph [116], and like her I am confident that, the members of the public who apprise themselves of the details of Officer Smith’s offending, will be able distinguish between his malfeasance and the basis and extent of it and the conscientious, professional and dedicated police officers who continue to act on the public’s behalf, and who continue to deserve respect and the trust that has been placed in them.

Disposition

[148] There are two basic sentencing streams. One flows in the direction urged by the Crown. When an officer fails to honour his or her oath and commits a crime while on duty, the actions of that officer demean all police officers. The other sentencing stream advocates for the mitigating effect of a discharge on the basis that the public interest is better served by rehabilitating that officer and permitting him or her to continue having the opportunity of be socially productive.

[149] Since a discharge is almost invariably in the best interests of the offender, where a discharge may be within the realm of a fit sentence, the issue devolves into whether the public interest is better served by sanctioning an officer with a conviction or whether is it in the public interest to discharge that officer and by doing so permit that offender to continue being a productive member of the community in some capacity, (and not necessarily as a serving police officer.)

[150] In some of the cases, other collateral consequences including employment deterrents such as reprimand letters, the docking of pay or deterrent publicity or notoriety have occurred and those kind of matters may have tipped the balance in favour of a discharge in those cases.

[151] Moreover, in some of the cases, the offending officer had created a substantial bank of goodwill to draw upon in mitigation of his or her crime(s) through acts of gallantry, prior bravery, heroic service or substantial civic generosity or volunteerism, which tipped the balance in favour of a discharge.

[152] In short, each sentencing decision is fact specific, as stressed in Pham, which was previously cited and quoted from extensively, earlier in these reasons.

[153] Officer Smith’s crimes can easily be distinguished from those cases where officers stole for personal gain, assaulted a defenceless prisoner or denied members of the public a potential defence because of lies told by that officer.

[154] Officer Smith’s crimes, despite being acts of malfeasance during the course of his duties, were the criminal acts of a lazy and irresponsible police officer. But, they were not designed to harm the public intentionally. They were not designed to harm any identified member of the public. And, they were not designed to financially benefit Mr. Smith.

[155] What Officer Smith did here was to achieve a result that the members of the community who surrendered the weapons wanted to achieve and he achieved the result that the HPS wanted to achieve but he did so by taking illegal shortcuts. He was so lazy and so unprofessional that he resorted to criminal acts to complete two simple assignments, in order to achieve the result that everyone wanted.

[156] Had Officer Smith stolen these weapons and sold them, for example, he would likely be facing a jail term. Had Officer Smith illegally amended and thereby forged a judicial authorization which he then uttered to the detriment of a person being investigated, (once again as an example), he would likely be sent to jail.

[157] While it may seem somewhat oxymoronic, these crimes – despite being acts of forgery and uttering – lie at the less serious spectrum of criminal behaviour committed by police officers, in these circumstances.

[158] While I acknowledge the lack of the mitigating effect of pleas of guilty, that lack is not an aggravating factor.

[159] A discharge has been held to have some deterrent and denunciatory effect. Despite the lack of objective or external harm caused by these crimes, they were committed by Officer Smith while on duty and they were committed by him in the performance of his duties. Absolute discharges are an inadequate and unfit disposition.

[160] On all charges concurrently I grant Officer Smith conditional discharges, conditional on the successful completion of a period of probation for 18 months on terms to be pronounced in court when these reasons are released.

[161] One of the terms of that probation will be the completion of 75 hours of community service.

Dated at Hamilton this 19th day of April 2021

J.S. Nadel, (OCJ)

[1] The headings from paragraph [4] to [22] and the content of the paragraphs following those various headings are essentially a cutting and pasting of large swaths of the PSR into these reasons.

[2] See R. v. C.A.M., 1996 SCC 230, [1996] 1 SCR 500 at paragraphs [79] to [82].

[3] As précised in the headnote this case was an appeal by the Crown from the conditional discharge granted to the 48-year-old defendant LeBlanc, a police officer. Leblanc pleaded guilty to a charge of breach of trust. He responded to a fire in progress at a local residence. While there, he rummaged through the owner's effects, including a private diary, and stole personal property, including $83 that the owner, a single mother of modest means, had saved to purchase Christmas gifts for her two children. LeBlanc initially falsely implicated members of the fire department.

[4] C.A.M., supra, at paragraph [28].

[5] Among other achievements, Morton was awarded the Treasurer’s Medal at the 1988 Convocation.

[6] I appreciate that his forgeries are distinct from his utterings in law but factually, so to speak, they were one transaction apiece.

[7] Subsequently, in these reasons I “borrow” heavily and without any further attribution from Judge Moore’s very complete organization and analysis in Duke.

[8] That discussion can be seen at paragraphs [32] and [33].

[9] At paragraph [56] His Honour wrote: “I find it difficult to balance the need of denunciation of an RCMP officer who lies in the context described with the need for understanding of a person who has suffered as has Mr. Atleo and his family. In the end, I think that compassion is, in this case, a more compelling imperative than denunciation.”

[10] $78 is 39% of $200. The rough equivalent of theft under $5,000 would be $1,950.

[11] “2 The appellant is 25 years of age, unmarried, and a native of Chile. She was in Toronto on an exchange programme with the University of Toronto, arranged for graduate students. She was stated to be a four-year honour graduate, a very good student, and was said to have been working with the Chilean Government for three years on a "programming and computerization of examinations for teachers, high school teachers, in Chile". She was one of eight Chilean graduate students sent to Toronto. Her counsel stated that if a conviction were registered, she would be deported, would lose her job, and would not be able to continue in the programme of visiting other universities throughout the world”.

[12] 14 Further, in the discharge of his duties as a firearms officer he was in a position of trust charged with the faithful performance of his duties as such as part of the scheme and organization established by Part II.I of the Criminal Code for the control by the registration of firearms and other offensive weapons with a view to minimizing their use in the commission of criminal offences and assisting in the investigation of crimes in which firearms are used, all for the general protection of the public.

15 These then are the two serious aspects of the commission of the many offences by this accused which would justify a sentence as would act as a general deterrent to other police officers who act as firearms officers for local police detachments throughout the province and indeed throughout Canada.

16 Hence, the position taken by the Crown that these are serious offences; that the accused was in a position of trust; that the accused was a police officer, aggravates the seriousness of the crime; that firearms are inherently dangerous and need strict control and points to other aggravating circumstances that might be relevant. 17 This position is set out in the letter which is now Exhibit #5 which concludes that the Crown will not make any specific suggestions to the Court as to what the sentence ought to be, but will trust the sentencing Judge to deal with the matter in a fair and just manner not only for the client but also for the public. That letter was written to counsel for the accused in confirmation of the agreement reached between them that the accused would be entering pleas of guilty to 36 of the 38 counts and to the withdrawal of the remaining 2 counts.

[13] 5 Mr. Gray has no prior record and is currently 57 years of age. Mr. Gray was suspended with pay in 1998. He has an outstanding and lengthy record of policing service to this community. He is a recipient of the Ontario Medal for Police Bravery and a Police Services Board of Peel Commendation. John Gray was instrumental, because of personal tragedy in his own family, in forming and running an organization known as "Against Drunk Driving." Mr. Gray has spoken to countless numbers of students and others about the evils and consequences of impaired driving. Through his church, Mr. Gray has performed countless hours of community service. Mr. Gray and his wife, for years, acted as foster parents for Peel Children's Aid Society.

6 The court has, today, received a number of letters which attest to Mr. Gray's good character. All of this suggests that John Gray should not be appearing as an accused person in this courtroom, but John Gray made a serious error in judgment, in breaching the trust of his employer. Perhaps, as suggested by Mr. Black, had he taken legal advice as to whether such measures could lawfully be undertaken, in anticipation of retirement and running his company, he undoubtedly would have been forewarned not to abuse the information coming into his employer's possession.

[14] Reference needs to be made to Justice Harris’ judgment for his footnotes to the relevant authorities.