ONTARIO COURT OF JUSTICE
DATE: March 5, 2021
COURT FILE No.: Brampton 20-2319-00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
SEAN OSBORNE
Before: Justice Hafeez S. Amarshi
Heard on: February 1, 2021
Oral judgment: February 26, 2021
Written reasons for sentence released on: March 5, 2021
Counsel: I. Bulmer, counsel for the Crown P. Brauti & L. Gridin, counsel for Sean Osborne
H.S. Amarshi J.:
A. Introduction
Sean Osbourne pled guilty to one count of assault earlier this month. Mr. Osbourne is a police officer with the Peel Regional Police Service and the offence was committed while he was on duty. The Crown proceeded by way of summary election.
The plea before me proceeded by way of an agreed statement of facts which was filed as an exhibit at the sentencing hearing. No criminal record was alleged by the Crown and there was no victim impact statement to file.
The Crown and Defence recommend different sanctions in this case. The real issue in this sentencing is whether a discharge would be contrary to the public interest.
Prior to Mr. Osborne’s guilty plea, this matter was subject to a judicial pre-trial conducted in front of me in early December 2020.
B. Circumstances of the Offence
On November 14, 2019 around 12:30 a.m. Officer Osbourne responded to a call for service as a member of the Peel Police Central Robbery Unit. He was not in uniform.
A woman alleged that she was approached in her driveway by two males. One of the males she says brandished a hatchet and threatened to kill her if she did not relinquish her vehicle.
The woman ultimately complied, and the two males fled in her vehicle. She suffered no injuries.
Her car was equipped with a GPS tracker and police were able to locate the vehicle in Mississauga. When police arrived the two males were in the process of removing a licence plate. They fled in different directions.
Mr. Osbourne chased one of the suspects, who was a young person, and arrested him in a parking lot of a high school on Creditview Rd. That parking lot was surveilled by closed circuit cameras.
The video, which was not tendered at the sentencing hearing, depicts according to the agreed statement of facts, Mr. Osbourne tackling the suspect to the ground after what is described as a “substantial pursuit.”
The young person resisted arrest and handcuffing by trashing back and forth and pushing his hands underneath his body.
The suspect was eventually secured with the assistance of additional officers. Upon search the young person was found to be in possession of a hatchet.
After the suspect was securely arrested on the ground, Mr. Osbourne got off him and stepped on his head/neck area. It is agreed that there was no “post-arrest” actions by the young person to warrant this use of force by the officer.
The young person was placed on the ground upright against a police vehicle. Mr. Osbourne who was nearby, alleges the young person spat towards him. The suspect was not charged in relation to this spitting.
The video does not depict conclusive proof of any spitting by the young person. The video does show Mr. Osbourne to twice kick the suspect in the chest with the bottom flat part of his foot while the young person was sitting against a vehicle.
The suspect was not injured by the assault and was subsequently charged with robbery. That charge was stayed by the Peel Crown Attorney’s Office in April 2020.
Mr. Osbourne admits that his use of force against the young person, who had been securely arrested, was unjustified, an unlawful use of force and, therefore, an assault.
C. Circumstances of the Offender
Mr. Osborne is 47 years old. He grew up in St. Thomas. His mother and stepfather are retired and are still active. He has one sibling – a younger brother.
He has been in a common-law relationship for ten years. His partner is also a police officer, and I understand to be extremely supportive both in relation to this proceedings and Mr. Osborne’s mental health challenges.
Mr. Osborne suffers from post-traumatic stress disorder (PTSD) and was struggling in the months leading up to this incident. According to Mr. Brauti, there were at least three occasions when the officer was injured on the job. In one incident he acquired a blood infection from a suspect he was attempting to arrest. On another occasion he was struck by a car. The suspect was fleeing police.
A report completed by his psychologist on December 3, 2020, concludes that Mr. Osborne suffers from chronic PTSD, likely a result of his exposure to traumatic events during his policing career. He also suffers from depression.
Also included in his medical records is a description of a residential treatment program completed by the offender in July 2020. The program is designed to assist first responders who have been diagnosed with PTSD. Mr. Osborne sought counselling prior to his arrest in February 2020 and before a formal PTSD diagnosis was made.
Mr. Osborne has been a police officer for 20 years and has spent time in various specialized police units. In 2010 he was employee of the year and has received numerous awards and recognition for his policing service.
Mr. Brauti described Mr. Osborne as having a backbreaking schedule as a police officer, having been involved in hundreds of investigations. Counsel indicated that Mr. Osborne’s biggest flaw perhaps is that he was too engaged in policing, to the point where he was counselled by his colleagues to ease his duties.
According to Mr. Brauti, Officer Osborne has no recollection of stepping on the young person’s head. He agrees the video is an accurate depiction of the incident, which he describes as a momentary lapse of control, which he attributes to Mr. Osborne dealing with a violent situation, the adrenalin running through him at the time of the incident, and the impact of PTSD.
In his statement to this court, Mr. Osborne apologized for the incident and indicated this he is seeking to continue his counselling. That the incident caused him to take some time to step-back and revaluate. I found his comments to be thoughtful and a genuine expression of remorse.
D. Positions of the Parties
The Crown seeks the passing of sentence be suspended and Mr. Osborne be placed on probation for a period of 12 months. Only statutory terms are being sought as part of the probation period. The Crown is not seeking a no-contact order. This is reasonable in the circumstances given that the parties are unknown to each other. Further, the Crown is not seeking any ancillary orders be imposed by this court.
Mr. Bulmer argues that general deterrence and denunciation are the key sentencing principles to be applied in this case.
He relies on three recent authorities – R. v. Theriault, 2020 ONSC 6090, R. v. Doering, 2020 ONSC 4900 and R. v. Goodwin, 2020 ONSC 449. Although factually dissimilar to this matter, these authorities annunciate the main sentencing principles that apply in cases involving criminal offences committed by police officers.
Mr. Brauti concedes a suspended sentence is in, as he termed it, the “strike zone,” for this specific offence but argues a discharge is equally appropriate in the circumstances. He submits this court should focus on imposing the most lenient punishment that sufficiently engages the applicable principles of sentencing in this case. It is a principle I don’t disagree with.
Mr. Brauti provided this court with eight sentencing authorities. I will not review all of them but generally they are cases in equally or more serious circumstances that resulted in a court imposing a discharge.
In R. v. Hutchinson, 2009 ONCJ 440, the court imposed an absolute discharge after finding a Windsor area police officer guilty of assault bodily harm for kicking a suspect in the head while he was on the ground. The suspect in this case initiated a fight with the officer when he was being arrested.
In R. v. Shipley, 2015 BCPC 220, two transit officers investigating a disturbance call at a Skytrain station struck a seated commuter when he attempted to stand up while being investigated. The victim received three knee strikes, was taken to the ground, and pepper-sprayed by the officers. The court concluded that neither a conditional sentence as advocated by the Crown nor an absolute discharge, sought by the defence were appropriate sanctions. Ultimately the court concluded that a conditional discharge followed by a short period of probation was proportionate in the circumstances and sufficiently engaged the principles of denunciation and deterrence.
Finally, in R. v. Cardinal, 2005 ONCJ 367, which has some factual similarities to this matter, a member of the Ottawa Police Service pled guilty in an incident in which he twice thrusted a detainee’s head against the trunk of a police cruiser. The victim was handcuffed at the time. The actions were recorded on videotape by a citizen looking out an apartment window. The arrest was difficult - the victim was abusive, belligerent and she resisted. The court relying on s. 718.2(a)(iii) found it statutorily aggravating that the officer in committing the assault abused his position of trust and authority towards the victim. Mr. Cardinal had multiple good character references and an unblemished policing career. The court took into consideration that the officer had been suspended by his police service for a four-and-a-half-year period since the date of the offence. Griffiths J. concluded that it was not contrary to the public interest for Mr. Cardinal to receive a conditional discharge.
E. Character References
Before turning to the applicable sentencing principles in this case, I want to refer to the letters of good character filed in this case. Eighteen character references were submitted and included letters addressed to this court from Mr. Osborne’s colleagues, neighbours and friends. Also submitted was a letter from a man whose tenant had her car stolen at gun point. He reflected on the professional manner in which Mr. Osborne conducted the criminal investigation and the respect and compassion he showed towards the victim.
In sum, the letters are glowing in their description of Mr. Osborne and generally describe him as humble, generous and caring. A police officer who inspires trust and acts with integrity. The letters were impactful.
A consistent theme in the character references is Mr. Osborne’s work ethic, which is unparalleled. A police sergeant described him as the “hardest working officer I have ever supervised.” A colleague of the officer stated in his letter to this court - “Sean puts every molecule of himself into what he does,” and noted that his significant caseload had to be reassigned not to one, but multiple officers after Mr. Osborne was suspended as a result of this incident. Another police officer observed that Mr. Osborne habitually worked overtime.
The letters also reveal his significant professional impact with the Peel Regional Police Service. Mr. Osborne as an informant coordinator assisted in solving multiple serious crimes in this jurisdiction. According to Sgt. Aaron Masnagi, one of his former supervisors, information sourced by Mr. Osborne’s network of informants led to actionable intelligence in 21 homicide investigations and seven armed robberies. His information assisted in getting significant numbers of guns and quantities of drugs off the streets.
One letter in particular was striking, that of Mikail Ibrahim Aras, a self-admitted gang member. He speaks to a period in 2016 when he was homeless. He described his life as a huge mess, saying he was broken inside. He reached out to Mr. Osborne for help. He had met the officer under difficult circumstances after being arrested a year earlier. According to Mr. Aras, the officer responded to his plea and helped him access community resources, including that at the Peel Youth Village, an organization I am well acquainted with, that assists young people in conflict with the law. Within weeks Mr. Aras had secured housing. Mr. Osborne continues to assist and mentor Mikail.
In his letter to this court Mr. Aras said the following, “Sean has always just been in my life at the right times to pull me back together and lead me on the right track again; I was a bad person and involved in a bad lifestyle. Sean invested his time in me and when he could have just gave up. I would have given up on myself if I had to help a person like me change because I was a lot to handle. He never looked down at me for the things I did in the past.”
F. Sentencing Principles
Section 718 of the Criminal Code instructs that the goal of any criminal sentence is to “protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society."
Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community.
A further principle I must consider is proportionality as set out in s. 718.1. Any sentence imposed must reflect the gravity of the offence and the offender's degree of responsibility.
This means that, for the sentence I impose to be appropriate, it must be tailored to Mr. Osborne’s circumstances, and the circumstances of the offence he has committed.
In determining an appropriate sentence, I am required to take into account any relevant aggravating or mitigating circumstances relating to the offence and the offender.
Finally, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances.
I note that sentencing is a highly individualized process. It is driven by the facts of every offence and the unique characteristics of every offender. Sentencing principles must be applied to the unique circumstances of the case. However, upon review of the Crown and Defence authorities, it is apparent that certain themes do emerge from the caselaw.
I accept that denunciation and general deterrence are the key sentencing principles to be emphasized in this case. Further, that police occupy a special position of trust in society and courts must consider this factor when determining an appropriate sentence.
As Pomerance J. stated at para. 25 in R. v. Doering, 2020 ONSC 4900, supra:
It has been recognized that crimes committed by police officers represent a breach of the public trust. It is for this reason that police are "held to a higher standard than would be expected of ordinary citizens," and "the principles of denunciation and general deterrence become magnified" in the sentencing of police: see R. v. Forcillo, 2018 ONCA 402, 361 C.C.C. (3d) 161 at paras.198-199; R. v. Ferguson, 2008 SCC 6, [2008] S.C.R. 96 at para. 28.
Indeed, police are tasked with protecting the community and enjoy significant public trust and legitimacy. They exercise power and authority not granted to other citizens. When a police officer who is sworn to uphold the rule of law commits a criminal offence, he or she should be subject to a more severe sentence than that of an ordinary person who commits the same crime. This is not only because of the position of public trust held by law enforcement, but also their knowledge of the potential consequences of criminality.
In R. v. Cook, 2010 ONSC 5016, Hill J. stated the following at paras. 35 and 36, when sentencing a Peel police officer for drug offences, theft and breach of trust. The offences in Cook are far more serious than in this case, but the principles annunciated in Cook are relevant.
Because police compliance with the rule of law is presumptive, 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: R. v. Cusack (1978), 26 N.S.R. (2d) 379 (C.A.) at 385 (cited with approval in R. v. Feeney, 2008 ONCA 756 et al., supra, at para 8) R. v. Yaghi, supra, at para 48 (as a police officer, "the potential consequences" of the accused's criminality "should have been starkly obvious to him.”)
Not surprisingly it 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 - "it is, of course, this very type of character profile which allows an individual to obtain a position of trust... Indeed, it has been observed that "law-abiding persons, with good employment records and families ... are the ones most likely to be deterred by the threat of severe penalties": R. v. Proulx, 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at 503.
I accepted the Crown’s argument that this court exercise some caution when considering older sentencing decisions of this type of case. That is not to say the defence authorities have no or limited precedential or persuasive value. The authorities were helpful in framing the relevant sentencing principles.
However, sentencing by Canadian courts must be anchored to societal values and judicial responses to them. As the court stated in R. v. Nur, 2011 ONSC 4874, [2011] O.J. No. 3878 (SCJ), “It is a common phenomenon, in the law of sentencing, for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change.” The comments by Code J. specifically relate to the justice systems’ evolving response to public concern about the proliferation of handguns. A very different factual situation to this sentencing matter, but the principle is sound in its application.
There is increasing scrutiny and public attention to police misconduct and use of force. A modern court must be tethered to evolving social norms. I note this with an important caveat – recognition of social values does not mean that a criminal sentence should appeal to the masses. As Pomerance J. stated in R. v. Doering, 2020 ONSC 4900, supra, “Public confidence in justice is not to be confused with popular justice. The sentence must reflect an objective balancing of the relevant legal considerations. The point is simply that the prevailing social milieu is context; a source from which to derive those values calling for affirmation in a denunciatory sentence.”
As the Ontario Court of Appeal stated in R. v. Schertzer, 2015 ONCA 259, at para. 136, when the offender is a police officer the objective of denunciation has heightened significance.
G. Aggravating and Mitigating Circumstances
- As I earlier indicated, the Criminal Code mandates a consideration of any relevant mitigating or aggravating circumstances related to the offence or the offender.
I find the following aggravating factors, which is not meant to be an exhaustive list:
(i) Circumstances and nature of the offence. The young person was restrained and in custody when Mr. Osborne stepped on his head/neck area. I appreciate this single act may have been, as the defence argues, a momentary lapse of judgment on the part of the officer after a difficult arrest of a suspect involved in a violent car-jacking. However, the assault continues. Mr. Osborne subsequently kicks the young person twice in the chest with the bottom flat part of his foot while the suspect was sitting against a vehicle. This is well after any threats to the officer had been minimized. The young person was not injured but Mr. Osborne showed a remarkable lack of restraint contrary to his training as a sworn police officer.
(ii) The assault occurred in the course of duty and was a breach of the public’s trust.
Turning to the relevant mitigating factors in this case:
(i) Mr. Osborne is a first-time offender. He has pled guilty and has taken responsibility for his actions. He is remorseful. I accept that his actions on November 14, 2019 were out of character and inconsistent with his personality and previous professional conduct. The likelihood of re-offence is low.
(ii) The officer’s contributions to the Peel Regional Police Service have been significant. As a colleague of the officer noted in his letter of good character to this court, Mr. Osborne is among the top echelon of investigators in Peel. Although being effective in ones chosen occupation is not necessarily a mitigating feature in sentencing, I acknowledge his contributions to public safety are considerable and a positive factor I have taken into consideration.
(iii) The prospects for rehabilitation are good. Mr. Osborne acknowledges his mental health challenges and has taken positive steps in seeking counselling and treatment. He has a supportive network to assist in his rehabilitation.
H. Collateral Consequences
Mr. Brauti outlined a number of collateral consequences in the event a conviction is imposed in this case. They include a loss of pay, possible demotion or dismissal from the police service. In the event of a demotion or dismissal there will be a negative impact on the officer’s allowable pension contribution and subsequent benefit at retirement.
Although Mr. Osborne is exposed to an additional penalty based on the outcome of these proceedings, such considerations cannot overly influence the determination of a fit sentence in this case. I acknowledge the collateral consequences to Mr. Osborne’s professional life in this case are potentially significant but their impact on my assessment of an appropriate sentence in this case is minimal. Canadian courts have recognized that where collateral consequences are directly linked to the nature of the offence, the mitigating effect is greatly diminished. See R. v. Theriault, 2020 ONSC 6090, at para. 78 (c). See also R. v. Lepine, 2010 ABPC 374, [2010] A.J. No. 1344 (APC).
I. Determination of a Fit Sentence
There is no issue that a discharge would be in Mr. Osborne’s best interests. However, I am of the view that to grant discharge in these specific circumstances would be contrary to the public interest.
Mr. Osborne’s use of violence towards a restrained young person must be denounced in the clearest terms. He had a duty to protect the suspect he had in his custody, yet he inflicted harm. This officer’s misconduct undermines public confidence in the police.
Rehabilitation and promoting a sense of responsibility in Mr. Osborne are applicable sentencing principles, however in the circumstances of this case, denunciation, and deterrence are of paramount importance.
A conviction is required to satisfy the need for general deterrence, that the unlawful use of force towards detainees, even in circumstances that are deemed fleeting in nature, will have meaningful consequences.
A discharge as sought by the defence does not sufficiently convey as a sanction the seriousness of this offence and the breach of the community trust.
J. Conclusion
Mr. Osborne, this court will suspend the passing of sentence and impose a period of probation for 12 months.
The Crown is only seeking the statutory terms apply. There is no need to impose a counselling condition given the upfront work by Mr. Osborne and his commitment to continued counselling and treatment for PTSD.
The conditions of the probation are the following:
- Keep the peace and be of good behaviour.
- Appear before the court when required to do so by the court.
- Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation.
- Report to a Probation Officer once within seven days of today’s date by telephone at 905-874-4058; from 8:30 a.m. to 5:00 p.m.
I want to thank both counsel for their fulsome and thoughtful submissions.
Mr. Osborne, I want to wish you the best of luck in your future endeavours.
Footnotes:
[1] On February 26, 2021, an oral judgment was rendered in this matter. On that date, I indicated the following: “Today’s reasons will be delivered orally. I will release a written decision in approximately one week’s time. The written version takes precedence over the oral reasons in the event of any discrepancy. That said, any changes contained in the decision would only relate to grammar and written clarity and not the underlying analysis and conclusion. The written version will contain footnotes which I will omit in this oral decision. I will also omit some citations in delivering my oral reasons today.”
[2] Section 718 (a) – (f) of the Criminal Code.
[3] R. v. Schertzer, 2015 ONCA 259 and R. v. Cook, 2010 ONSC 5016. See also R. v. Feeney, 2008 ONCA 756, at para. 9.
[4] See R. v. Theriault, [2020] O.J. No. 4797, at para. 78 (c). See also R. v. Lepine, 2010 ABPC 374, [2010] A.J. No. 1344 (APC).
