R. v. Grant, 2022 ONCJ 208

DATE: 2022 05 02 St. Catharines ONTARIO COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN — AND — JAKE GRANT

Before: Justice Fergus ODonnell

Reasons For Sentence Delivered on 22 April, 2022 Written Reasons For Sentence Released on 02 May, 2022

Counsel: Mr. Peter Scrutton................................................................................................. for the Crown Mr. Joseph Markson................................................................... for the defendant, Jake Grant

Fergus ODonnell J.:

Overview

1. Jake Grant has pleaded guilty to a single count of threatening as a result of utterances he made to Bruce Love in the kitchen of a Subway restaurant on 15 February, 2017. Mr. Grant is a sergeant with the Niagara Regional Police Service. Mr. Love is a victim with obvious mental health problems, who like many such people has a history of frequent interactions with the police. Mr. Love had barricaded himself in the restaurant for a short period of time before the police entered to remove him, whereupon Mr. Grant committed the threatening offence.
2. I use the word “victim” in relation to Mr. Love advisedly. As I have noted, Mr. Love is one of those people in society who faces significant mental health challenges and whose conduct at times undoubtedly affects other people negatively, perhaps significantly so. It is clear that he has had many, many interactions with the police and it would not stretch the imagination to conclude that interacting with him could be time-consuming and frustrating.
3. I am sure that some will hear the word “victim” and consider its use in relation to Mr. Love as inapt. Any person who has a problem with my use of that word in this context quite simply has a problem with the English language. Mr. Love was indisputably the victim of the offence that Mr. Grant has admitted committing. Any person who has a problem with my use of that word in this context and who is a police officer quite simply should not be a police officer.
4. The Crown asks that I convict Mr. Grant and fine him; to the Crown the dollar amount of the fine is less important than the fact of a criminal conviction for his offence. The Crown says a discharge would be contrary to the public interest. Mr. Grant asks that I grant him an absolute discharge and argues that his circumstances and the nature of the offence point to an absolute discharge being lawfully available and being a suitable sentence.

The Procedural History

5. As might be inferred from the gap between today’s date and the offence date, more than five years ago, this case has somewhat of a tortured procedural history. I set some of that out here as it is relevant to some issues in the case. The details are set out far more comprehensively in the summary conviction appeal decision of Justice R. J. Harper of the Superior Court of Justice in R. v. Grant, 2020 ONSC 2423.
6. Mr. Grant was originally charged with assaulting Mr. Love as a result of a complaint Mr. Love made to the Niagara Regional Police. This assault allegedly occurred in the back kitchen area of the restaurant, where Mr. Love had been taken by Mr. Grant and three other police officers, away from where he was first apprehended in the public area of the restaurant. In his complaint, Mr. Love apparently made various inconsistent statements and also suggested that he would not pursue a complaint if the police would pay him money. The complaint initially led to a police standards investigation which became a criminal investigation conducted in-house by the Niagara Regional Police in relation to Mr. Grant, one of their own officers.
7. As is set out in Justice Harper’s judgment, I myself dealt with the significant judicial pre-trial process for the assault charge, including setting and following up on time-lines for things such as a potential defence disclosure motion, timelines that were not complied with, ultimately leading to the adjournment of Mr. Grant’s trial. Ultimately, Mr. Grant’s trial was commenced before another judge of the Ontario Court of Justice at St. Catharines. Eventually, Mr. Grant applied to the trial judge for a stay of proceedings for a variety of reasons that are set out in detail in Justice Harper’s appeal reasons. The trial judge granted the stay of proceedings, thus terminating the assault charge against Mr. Grant.
8. The Crown appealed the trial judge’s stay of proceedings to the Superior Court of Justice and succeeded. Justice Harper remitted the matter to this court for trial before a judge other than the trial judge and it again landed before me to conduct the judicial pre-trial proceedings for the setting of a new trial date. Mr. Grant, however, sought to appeal Justice Harper’s decision overturning the stay of proceedings to the Court of Appeal for Ontario, where he failed.
9. The matter then recommenced in this court before me as the pre-trial judge. Ultimately, it became clear that the parties were willing to resolve the matter for a plea to a charge of threatening rather than the original assault allegation and the parties agreed that I could hear the plea and determine the sentence. Mr. Grant entered his plea before me on a bare bones set of facts in December, 2021 and then returned before me in February for the filing of a detailed agreed statement of facts and an audio/video compilation of the relevant events in the restaurant. On the same day, both parties made their submissions on sentence and I heard additional comments from Mr. Grant in the form of a letter read by Mr. Markson.

The Materials Filed

10. On Mr. Grant’s sentencing hearing, I received the following materials, all of which I have reviewed at least once, much of it more than once: a. The agreed statement of facts; b. The USB drive containing the audio/video synchronization of what happened that night, derived from an audio and video recording on Mr. Love’s phone (mostly relevant for audio) and video-only recordings from the restaurant’s CCTV system, which captures the interaction. c. Defence Sentencing Materials, Volume I, consisting of twenty-five reference letters. d. Defence Sentencing Materials, Volume II (eighty tabs) consisting of: i. An appraisal from the final year of Mr. Grant’s service with the Royal Canadian Regiment. ii. About sixteen years of performance appraisals with the Niagara Regional Police. iii. Numerous course attendance certificates. iv. Various letters of appreciation/commendation. e. Defence Sentencing Materials, Volume III (forty-one tabs), consisting of: i. Mr. Grant’s apology letter to the Crown and Court and proof of a two-thousand-dollar donation to Southridge Church, which operates a shelter. ii. Documentation setting out Mr. Grant’s long history of community and volunteer engagement in a variety of areas. iii. Medical files setting out, in summary fashion, diagnoses including PTSD, although the materials do not provide any meaningful detail. iv. A list of about forty counselling appointments over a three-year period from the summer of 2018 (about a year and a half after the offence) to the summer of 2021 (almost a year ago). v. Documents demonstrating some of the activities of Mr. Grant’s wife’s travel business. vi. Documents relevant to the issue of admissibility to the United States of America. f. Defence Sentencing Authorities comprised of twenty-seven tabs. g. Crown Sentencing Authorities comprised of seven authorities.
11. I do not plan to advert to those materials in detail. Suffice to say that the materials filed by the defence clearly demonstrate that for a very, very long time, indeed for two decades, in several roles: as a member of the Canadian Armed Forces, as a police constable, as a sergeant, as a specialist officer performing multiple roles at the same time, as a trainer and as a member of the broader community, Mr. Grant has shown a remarkable commitment to public service, in and beyond his role as a police officer, a work ethic beyond the grasp of most, personal discipline in mind, body and presentation, a persistent pursuit of professional development in multiple disciplines, investment in the well-being and betterment of his peers and subordinates and empathy for those facing harm from physical circumstances or mental health crisis.
12. Suffice to say also, that this highly-trained, experienced, accomplished and empathetic person, while paid and sworn to uphold the highest traditions of the law and to do so in a leadership role, in front of three of his subordinates to whom he was supposed to serve as an example, frog-marched the floridly mentally ill Mr. Love to the back of a restaurant where he berated and bullied and threatened and diminished that detainee shamelessly and in a shockingly vulgar and hypocritical fashion.

What Happened?

13. As noted, the Crown and defence distilled the events of that night into a four-page agreed statement of facts and provided a time-synchronized compilation of the relevant portion of the various recordings. The only way fully to appreciate how repugnant Mr. Love’s treatment at the hands of Mr. Grant was that night would be to watch the video and listen to the audio. The agreed statement of facts in written form will have to suffice for the purpose of these reasons, so I recite it in its entirety here.

The accused, Jake Grant, has been an officer with the Niagara Regional Police Service since 2001. He currently holds the rank of Sergeant.

The complainant, Bruce Love, is well known to the NRPS, having been arrested or cautioned by members of the service, or apprehended under the Mental Health Act, on numerous occasions.

On February 15, 2017, Sgt. Grant was assigned to uniform patrol in St. Catharines. He had not encountered Bruce Love on duty prior to February 15, 2017. That evening, Bruce Love attended Tim Horton's restaurant located at 212 Welland Avenue. Mr. Love was smoking inside the restaurant and was presenting bizarre behaviour. He was asked by staff to leave the restaurant but refused. Police were called at approximately 8:51 pm. Police attended spoke with Mr. Love, whom after several requests to leave, Love complied.

Later that evening, at approximately 9:40 pm, Mr. Love attended the Subway Restaurant located at 191 Welland Avenue. He entered the store, which was empty of customers; a lone female clerk was present. Mr. Love placed a cell phone on a counter to charge it, while activating the video and audio recording function on his phone. Mr. Love put the camera in selfie mode and looked into the camera in order to check on the angle and the set-up of the phone to record the front doorway area of the Subway. After stepping away from the camera, he looked back to check that it was still pointing in the right direction. Also recording were Subway security cameras, which covered the front reception and kitchen area. These cameras do not have an audio function.

Mr. Love sat on the window ledge at the front of the store for over 45 minutes without engaging with the store clerk or any customers. He then began to stack chairs. Soon after, the chairs fell. The clerk asked Love: "Are you ordering anything"? He did not respond. A few minutes later, at approximately 10:28 pm, Love walked to the front door of the store and locked it. The female clerk became concerned and left the store via the rear door in the kitchen area. She immediately called the police.

Mr. Love continued to walk around the store. He began smoking a cigarette and helped himself to pop and chips, at one point going behind the counter. Two customers attended the store but did not enter because of the locked door.

At 10:48 pm, NRPS officers arrived on scene but could not enter because of the locked door. Mr. Love began making utterances through the glass, saying: "You guys wanna kill me, you guys wanna kill me"… "You can see the news cameras and shit over there". ... "You guys wanna kill me man". Love then stated that this was live on Facebook (in reference to the video recording). Additional officers arrived on scene and attempted to engage with Love to get him to open the door. He continued to say words to the effect of "I said you guys are trying to kill me man, you guys are trying to kill me, you guys are trying to kill me tonight"… "Because I'm psychic and you guys think I'm gonna take over the world. I'm not stupid".

While this interaction was taking place, Sgt. Grant and another officer walked around to the rear of building where they were shown the rear entrance by the store clerk. As they entered, Mr. Love dropped his cigar and unlocked the front door. He walked toward a table and placed his hands behind his back. Three NRPS constables entered the front door. Sgt. Grant and a constable came in from the kitchen.

Sgt. Grant took Love by both arms, guiding him from the front to the kitchen. As they were walking, Love said "I let you in". Three constables followed. Sgt. Grant took both of his hands off Love and stepped in front to face him. The nature of the physical interaction that followed, and any potential justification, is the subject of dispute between the parties, who agree that this issue is not necessary to resolve on his plea to uttering threats.

The following exchange occurred:

MR. GRANT: What the fuck is your fucking problem? Put your fucking hands down. Put your fucking hands down. Put your hands down. Put your put your fucking hands down. You fucking look at me when I'm talking to you, you walking piece of shit. MR. LOVE: I'm sorry look I'm sorry ow ow. MR. GRANT: Hey stand up you wanna be a fucking man you be a man you stand the fuck up don't be sorry stand up. MR. LOVE: Ow ow I'm sorry I'm sorry I'm sorry. MR. GRANT: Hey look at me you fuck. MR. LOVE: I'm sorry ow ow ow. MR. GRANT: I said until you look at me this isn't going to stop. Stand up what the fuck is wrong with you at me moron I don't (inaudible) give a fuck (inaudible) you go and scare that young girl here and you fucking record it (inaudible) (mumbling) start fucking talking goof I swear to fucking god Bruce if I deal with you one more time in the rest of my fucking existence here I swear to god I'm gonna dump you in the river. I've had enough of your shit stop wasting our fucking time what is wrong with you. MR. LOVE: (inaudible) my head. MR. GRANT: Well stop it tell the voices to shut up and get a grip on yourself do something about it MR. LOVE: (inaudible) MR. GRANT: Well go again well go again you're not gonna get help at Subway it's fucking Subway (inaudible) go to the hospital don't go to fucking Subway to scare a little girl and you don't look me in the fucking eye when I'm (inaudible) get a grip on yourself (inaudible)

After this interaction, Mr. Love is brought out of the store by two constables. Sgt. Grant follows, stopping to pick up Mr. Love's hat from the kitchen floor and throwing it into the garbage can. Once outside, Mr. Love is apprehended under the authority of the Mental Health Act. He is handcuffed and searched, before being transported to the St. Catharines hospital.

14. Mr. Grant uses the words “fuck” or “fucking” nineteen times in this relatively short verbal barrage against Mr. Love.
15. I shall note again, because it bears saying again and again, that mere words on paper are poor substitutes for the video and audio presentation of Mr. Love, cowering against a wall while cornered by three or four police officers, whimpering while Mr. Grant lets loose with a barrage of expletives and abuse while demonstrating no empathy, no restraint, no sense of public duty and no apparent understanding of how to deal with a person in mental distress. Other than Mr. Grant physically assaulting Mr. Love, which is not an admitted fact before me and not a consideration on sentence, it is hard to image what Mr. Grant could have done worse.

Specific Issues

16. There are a few issues that struck me during my review of the materials and the submissions on behalf of the Crown and of Mr. Grant.

Why Did Mr. Grant Treat Mr. Love As He Did?

17. When one reviews all the material in this case, about what Mr. Grant did that night juxtaposed with how he has lived his life for the preceding decades, both on and off the job, the instant reaction is that this simply does not compute. It is in the nature of criminal cases that one does not always get an answer to the question of “why”, but finding the answer to that question can be invaluable for the purpose of reducing the chance of any recurrence of bad conduct. It is a given, of course, that any of us could have our bad days when we behave out of character, but there is usually a reason when that happens.
18. In this case there is no clear reason. I have been provided with voluminous documentation about Mr. Grant’s many, many, many attendances at therapy, but none of them provides any insight into why this happened. The documents provided are not therapeutic reports as such but rather administrative records to justify time off work and simply list post-offence diagnoses, without being particularly clear about whether any of the therapy related to the underlying cause of Mr. Grant’s crime or about him coping with what one would presume to be a dramatic change in the nature of his duties or only about his perception that he was being bullied by police management and not being offered appropriate support in light of the criminal proceedings. The records are of very limited value in the form they came to me in. Of course, the irony of Mr. Grant feeling aggrieved at being allegedly bullied or mistreated by persons in authority over him is more than mildly ironic given his treatment of Mr. Love that led Mr. Grant to his present predicament.
19. Quite apart from there being no therapeutic material explaining why he behaved as he did, Mr. Grant’s own letters to the court, both the letter filed and the letter read in by Mr. Markson, provide no insight into why Mr. Grant would have gone so shockingly far off-side in his treatment of Mr. Love. Mr. Grant is the supervisor who arranged for other officers to donate their own leave time so that a very junior officer with limited leave entitlements could spend more time with his dying father. He is quite literally the officer who talked a suicidal person off the ledge and whose ability to connect and engage with people in crisis who are about to engage in self-harm has been recognized as being superior to most. He is the officer who scaled down a waterfall to reach two injured hikers and who distracted them until they could be extracted in order to keep them from going into shock. His performance appraisals glow with commitment and achievement and with a desire to make himself a better police officer year after year, yet he did this?
20. The closest we come to an explanation for why Mr. Grant behaved as he did is not from Mr. Grant or from a therapist’s report but from a connection of circumstances proffered by Mr. Markson as perhaps explaining why it happened. By this theory as I understand it, Mr. Grant had dealt with an incident a few months before that involved the same store clerk, but did not involve Mr. Love. The audio transcript does show Mr. Grant’s reference to Mr. Love scaring the “little girl”. In this “understanding” of Mr. Grant’s total loss of control, suggests Mr. Markson, Mr. Grant hoped to protect the store clerk by scaring Mr. Love out of such conduct.
21. I fully appreciate that Mr. Markson was not seeking to justify Mr. Grant’s conduct, but even to the limited extent that this connection purports to explain or contextualize Mr. Grant’s conduct, it is very slim indeed. Mr. Grant had no previous dealings with Mr. Love. Mr. Love had no connection to the previous incident. Although the Subway incident is referred to in some of the counselling records as involving a hostage taking, there is zero basis for that characterization: Mr. Love entered the restaurant, sat around for a long time doing little of anything, did not order any food, charged and set up his phone, stacked chairs and then locked the door, at which point the clerk left by the back door unhindered by him. For this to have triggered Mr. Grant’s outburst seems implausible. Ultimately, how a seasoned police officer upholding the interests of a supposedly vulnerable “little girl”, a person who takes pride in his skills at training both people and animals, could ever imagine that the appropriate way to deal with a mentally ill person is effectively to scare him straight remains unfathomable.

The Letters of Reference

22. As I have noted, there were dozens of letters of reference in Volume I of the defence sentencing materials, all glowing. Twenty-four of the twenty-five were from police officers.
23. Not a single one of the letters from the twenty-four police officers makes any reference at all to Mr. Grant’s crime against Mr. Love. They might as well have been written in support of a person’s application for a job or a promotion or have been the kind of letter compiled for a tribute book when someone retires after long service. While I do not minimize the powerful and collective force of their messages about Mr. Grant’s many and long-term virtues, one wonders what the authors might have said if they had seen and heard Mr. Grant’s scandalous conduct. How much does any of them even know about what he did that night?
24. This is particularly true of three of the police authors of the reference letters. They were with Mr. Grant in the back of the restaurant that night. They for certain saw and heard what he did. The saw Mr. Love cower; they heard him whimper. They were within a couple of feet of Mr. Grant’s stream of bullying vulgarity. None of them adverted to that at all. How can that possibly be?
25. For both categories of authors of the reference letters, the absolute silence about what Mr. Grant did to Mr. Love that night is material and potentially troubling. This is true not only of these particular reference letters, but of reference letters tendered by counsel generally, the majority of which do not demonstrate any awareness of what the offender has done or even that the letter is to be used in a criminal trial. One has to ask if these twenty-one officers who were not present knew what Mr. Grant did to Mr. Love that night? Had they ever read the transcript of his outburst? Had they seen the video? Heard the audio? How would knowing what Mr. Grant did to Mr. Love have affected their opinion of him? If full knowledge would not have shaken the authors’ confidence in Mr. Grant, then the letters lose much of their value, because a reference letter’s value is inescapably linked to the credibility and value systems of its author. I have consciously used the word ‘shaken’ here rather than wondering if full knowledge of Mr. Grant’s acts would have shattered the letter writers’ opinion of him because single bad acts, even very bad ones like this, do not usually define a person’s character, but the failure of the writers to advert to Mr. Grant’s crime does diminish their letters’ worth. This is an area in which quality would have been preferable over quantity.

The Defence Contention That This Was An Early Plea And That The Delay Is A Mitigating Factor

26. Two of the various building blocks of Mr. Markson’s argument in favour of an absolute discharge were his contention that this was an early plea and that Mr. Grant had been through a long process to get to where we are today. I agree with Mr. Scrutton for the Crown that these are not sustainable contentions.
27. Mr. Grant was charged with assault on 24 April, 2017, a little more than two months after the incident in the restaurant. He entered his plea, to the different charge of threatening, before me on 21 December, 2021, some four years and eight months later, after the stay of proceedings he had sought and obtained was overturned on appeal. Chronologically, this is not an early plea. Neither does it become an early plea even through the lens of the total context of the case.
28. Within his or her means, every litigant has choices to make. I am told by Mr. Markson that Mr. Grant had a good defence to the assault charge on the merits. It was open to him to follow that path towards the acquittal on the original assault charge that I am told likely awaited him, by that reasoning. Indeed, he could have telegraphed his position by proceeding to trial on the assault and seeking when arraigned to enter a plea to threatening, which the Crown might there and then have rejected. Such an approach might have been brilliant advocacy given the defence description of the Crown’s case on the merits. I am not saying that Mr. Grant should have done that, only that it was one option open to him. Or he could simply have pleaded not guilty to the assault and relied on the presumption of innocence and the burden of proof. He chose not to do that, which was his right. But he lives with the consequences of his choices, including the pursuit of different applications.
29. Instead, he proceeded to trial, which takes time. In this case, as set out in the appeal reasons of Justice Harper, he pursued a late application for disclosure of records relating to Mr. Love, an application that failed to comply with the case-management timelines set down by the court, thus necessitating an adjournment of the trial, which added to the delay. This was a choice he made. Mr. Scrutton characterized the defence litigation choices in the assault trial as all being in good faith, with some being misguided. He is fair to say that. Mr. Grant’s litigation choices were also time consuming. I would incline to think that the late disclosure application for Mr. Love’s Niagara Regional Police incident reports was an unsound choice, given how few were found to be of arguable relevance. The application for a stay of proceedings has been found, understandably so, to have been without merit. As the defendant, it was Mr. Grant who had the final say in going down that rabbit hole to achieve a desired and unrealistic result rather than an outcome on the merits, but the time it took to do that, and for the Crown to have the outcome reversed is a consequence of the defence’s misguided strategic choices. Mr. Grant also sought to overturn Justice Harper’s appeal decision in the Court of Appeal, which added yet more delay. He cannot complain of this.
30. All of these processes take time. A litigant with the resources is free to pursue a variety of litigation strategies, even litigation strategies that are misguided. He is entitled to appeal. What he is not entitled to do is to pursue the sort of litigation strategy Mr. Grant pursued in this case and then seek to convert that choice on his part into a mitigating factor on sentencing. If the assault case against Mr. Grant was as frail as Mr. Markson suggests, for example, Mr. Grant’s journey through the criminal court system could have been over within a year or less of his arrest through the simple expedient of scheduling a trial on the merits.
31. To be blunt, nothing short of alchemy could convert what happened here into an early plea or convert Mr. Grant’s chosen time-consuming litigation strategy into a mitigating factor. The plea is a mitigating factor because it is a plea, albeit not an early one. The time taken to get to this point counts neither for nor against Mr. Grant. He made his bed….
32. I note, parenthetically, that part of the application for a stay of proceedings was the assertion that the Niagara Regional Police ought not to have conducted the criminal investigation of Mr. Grant. That argument was found to be without merit on appeal by Justice Harper in the Superior Court. Not only was the argument without merit, but to the contrary, the conduct of the Niagara Regional Police Service in following the evidence and in advancing charges against one of their own, indeed one of their stars, for apparent criminal misconduct, is to the credit of the police service. The argument of misconduct by the Niagara Regional Police investigation should not have been advanced. The police service simply sought to uphold a standard that Mr. Grant had forsaken on 15 February, 2017.

Considerations on Sentence

33. As I mentioned earlier, the Crown says that a conviction must follow from Mr. Grant’s crime. The defence seeks an absolute discharge.
34. The Criminal Code sets out criteria for sentencing generally and criteria for discharges in particular. Before dealing with general considerations on sentence, I note that a discharge is available only when it is both in the defendant’s interest and not contrary to the public interest. Other than offences with a mandatory minimum sentence or offences punishable by fourteen years’ imprisonment or longer there is no list of offences that are ineligible for a discharge, although as the seriousness of the offence rises, the likelihood of a discharge being contrary to the public interest will also rise.
35. Every sentence must be proportionate in that it must reflect the seriousness of the crime and the degree of responsibility of the offender. A sentence aims to make society safe by using various tools such as probation, fines and jail to accomplish certain objectives such as deterring the offender and others from committing offences, denouncing criminal behaviour and seeking to ensure the offender’s rehabilitation, among other objectives. The focus will vary from offence to offence and from offender to offender. While the Criminal Code and sentencing precedents may dictate different emphases for certain circumstances, every criminal sentence will be tailor-made to its own facts.
36. Mr. Grant is a police officer. He committed the offence in the course of his duties. Police officers are faced with challenges not faced by the average citizen. They are also provided with powers and training and support mechanisms not enjoyed by the average citizen, powers and training and support specifically to allow them to handle the challenges their chosen profession faces them with. The public rightly expects that police officers will use their training in order to help them conform to the highest standards. When police officers fail to live up to these expectations, they bring discredit on themselves, on their fellow officers and on their police service. If police misconduct becomes commonplace, public confidence in the police will decline and police officers generally will end up at risk as a result.
37. Police officers are expected to know the consequences of criminal behaviour better than most. Because general deterrence and denunciation are given prominence when police officers commit crimes, as a general rule, they should expect to receive a higher sentence than a non-police-officer would receive for the same offence. Mr. Markson argues that given how long Mr. Grant has had this matter outstanding against him general and specific deterrence are not required. There is an argument in Mr. Grant’s favour here about specific deterrence (even if the delay is of his own making, as I have noted earlier), but not about general deterrence or denunciation as sentencing principles.
38. It is not uncommon for police officers to be in a position to advance evidence of good character, as Mr. Grant has done. That being said, very, very few would achieve the consistency and duration and breadth of positive engagement manifested in his achievements. It bears noting that in the course of these reasons I have barely skimmed the surface in terms of the various ways in which Mr. Grant has almost without exception demonstrated himself to be an exemplary individual in both his Armed Forces and policing careers and in his long-term and varied community involvement.
39. Mr. Grant’s position as a sergeant is an aggravating factor here. As both a long-serving and senior member of the police service, he was expected to serve as a role model to more junior officers. This he failed abysmally to do that night. Abysmally.
40. The letters of reference make it clear that Mr. Grant was widely respected by those with whom he worked including by those who worked under him. Indeed, three of the authors of the reference letters were in the back kitchen of the restaurant with Mr. Grant and Mr. Love. When one does the arithmetic from their letters of reference, it appears that at least two of them were quite junior in service. None of them intervened to restrain Mr. Grant from his outrageous behaviour. I repeat that. None of them intervened to restraint Mr. Grant from his outrageous behaviour. On one level, this is understandable given the chasm between their standing and his. On another level, intervention would have been the right thing to do and society justifiably expects police officers to do the right thing at all times, even when it may be awkward to do the right thing. It was Mr. Grant’s duty to set a good example and on this occasion he did the exact opposite.
41. Mr. Love was a vulnerable victim. He was isolated and outnumbered by four people with guns. He clearly was mentally ill. His mental illness was clearly active, as reflected in his assertions that the police were there to kill him. Alone in the restaurant, he was no danger to anyone and on the agreed statement of facts he might have frightened the clerk but had been no danger to her. He had behaved oddly in the restaurant but had allowed her to leave. Mr. Markson in his submissions recounted what he called “passing strange” about Mr. Love’s behaviour at the restaurant and at another incident a fortnight earlier, which he said provided “nuance” and showed Mr. Love’s “layers”, but he drifted perilously close to victim-blaming. His observations about Mr. Grant’s desire to protect the young restaurant staffer by his outburst may be valid to a point, but the achievement of a virtuous objective by criminal means on the part of a police officer remains a crime. There is also something between irony and hypocrisy in Mr. Grant professing to protect the supposedly vulnerable store clerk by berating and threatening a mentally ill person. When Mr. Love mentioned the voices in his head, Mr. Grant chastised him because he should have gone to the hospital rather than Subway for such issues. At what point in close to two decades of policing did it appear to Mr. Grant that screaming vulgarities at a mentally ill person was ever going to accomplish anything? We have heard of Mr. Grant’s clear empathy for people in mental distress who were engaging in self-harm, but it must also be remembered that people suffering from mental illness that impacts others are also deserving of respectful treatment. This is a lesson a police officer should understand wholeheartedly before the end of his or her first year in service.
42. Mr. Markson led me through a series of collateral consequences or potential collateral consequences for Mr. Grant if he were to be convicted or denied the absolute discharge he seeks. He suggested that if I were inclined to give Mr. Grant a conditional discharge, I should instead defer sentencing, have Mr. Grant do whatever additional steps I deemed necessary and then impose an absolute discharge after those steps had been taken.
43. In truth, there is not any particularly serious collateral consequence that Mr. Grant faces, with either a conviction or a conditional discharge. As Mr. Scrutton points out, there is nothing in the Crown’s sentencing position that would make it impossible for Mr. Grant to continue his policing career: the Crown seeks neither a jail sentence nor a weapons prohibition, each of which would be hard to reconcile with policing.
44. Another consequence Mr. Markson adverted to was the issue of travel. Mr. Grant’s wife is a travel agent and it is his hope when he retires from policing to join her in that endeavour, which would include leading tours to other countries. Mr. Markson points to the potential challenges of travelling to other countries, including the rather large one half an hour from this courthouse, if one has a criminal conviction and perhaps even if one has a conditional discharge. He has filed material relating to whether or not Mr. Grant would qualify for the Nexus trusted traveller programme between Canada and the United States depending on the form of the sentence he received.
45. It goes without saying that collateral consequences including collateral immigration consequences under Canadian or foreign law may be relevant to sentencing, although they will not necessarily drive the agenda. For example, in some situations a one-day difference in a jail sentence imposed might have potentially dire consequences for a permanent resident. Another example is that if a person in Canada on a work visa committed an offence, a conviction would render that person and her family inadmissible, a consequence that might be out of all proportion to the offence.
46. Other immigration consequences are such that they cannot drive or even nudge the sentencing analysis. I shall deal first with the argument about Mr. Grant potentially becoming ineligible for the Nexus programme depending on how I sentence him. A conviction or conditional discharge would apparently permanently bar Mr. Grant from the Nexus programme; an absolute discharge would trigger an eligibility review that might lead to ineligibility. The Nexus programme is obviously of some convenience to travellers, but it is a boutique feature and hardly of any substance in the sentencing analysis. I consider eligibility or ineligibility for that programme to be entirely irrelevant to my decision.
47. As far as admissibility to other countries is concerned, it goes without saying that each country has the right to decide who can enter and who cannot. Many admissibility decisions are highly discretionary and do not even depend on a judicial finding of misconduct. It is well recognized, for example, that the great republic to our south has certain views about the mere consumption of cannabis that can lead to refusal of admission, with or without a conviction. While Canadian law does not treat a conditional discharge as a “conviction”, American immigration law does see a conditional discharge as a “conviction” because any sentence with a consequence counts as a conviction for that purpose and probation is a consequence. Thus, for admissibility purposes to the United States there is no particular advantage to Mr. Grant to have a conditional discharge instead of a conviction. There would be an advantage if he had an absolute discharge because that is not a conviction under American law; there is no future consequence to an absolute discharge.
48. To a large extent, admissibility to the United States is governed by the question of whether or not a person has been “convicted” within the meaning above of a “crime involving moral turpitude”. The material filed with me in the form of a letter from highly experienced American immigration counsel does not even address the issue of whether or not threatening is a crime of moral turpitude. Mr. Markson told me it was a matter on which experienced counsel could not agree.
49. Assuming that threatening would be a crime involving moral turpitude, however, a person who has been “convicted” or conditionally discharged of a crime involving moral turpitude can apply for a waiver of inadmissibility, a process that could take one to two years.
50. As can be seen, the stated concern about Mr. Grant’s future inadmissibility to the United States is highly speculative. It cannot be a material determinant of a fit sentence for Mr. Grant.

The Appropriate Sentence For Mr. Grant

51. The Crown and defence have sketched out a range of three sentence options for Mr. Grant, namely a conviction, a conditional discharge and an absolute discharge. Strictly speaking, they have sketched out only two options because neither advocates for the conditional discharge, but it lies between their positions.
52. Mr. Scrutton has argued concisely that Mr. Grant’s privileged position as an experienced police officer in a supervisory role and his significant abuse of that position in his treatment of Mr. Love in the back kitchen of the restaurant call out for an actual conviction as a particular form of denunciation and deterrence to send a clear message that what Mr. Grant did to Mr. Love must never happen, a message that cannot be seen as at all ambiguous to any police officer. Mr. Scrutton’s focus on sending a message to police officers that they must at all times perform their duties within the lines is entirely justified. The sentence he asks for is certainly within the range of appropriate sentences.
53. Mr. Markson’s request for an absolute discharge strikes me as over-reach. It is a bridge too far. Given Mr. Markson’s request that I defer sentencing for Mr. Grant if I am considering a conditional discharge to allow him to do additional work to get an absolute discharge, the driving force behind that submission can only be the potential impact of a conditional discharge or conviction on Mr. Grant’s Nexus eligibility and United States immigration admissibility. Combining a trivial consequence with a speculative consequence quite simply does not entitle Mr. Grant to the outcome Mr. Markson seeks. Indeed, even allowing for the positive things to be said in Mr. Grant’s favour, to give Mr. Grant an absolute discharge would trivialize his behaviour. An absolute discharge for what happened here would be contrary to the public interest.
54. What, then, of the sentence option that neither party seeks, a conditional discharge? Is that within the appropriate range of sentence options?
55. There can be no doubt that in Canadian law a conditional discharge would be in Mr. Grant’s best interests, compared to a conviction. Would it be contrary to the public interest? A conditional discharge would be contrary to the public interest if it were incapable of achieving the objectives of sentencing, including proportionality, denunciation and deterrence, but an appropriately structured discharge can achieve the various objectives of sentencing, perhaps in an overall more balanced fashion than other sentencing options. In making that determination one must look at all of the facts, everything that is known about the offender and the impact of the criminal process.
56. On the facts, Mr. Grant’s offence was inexcusable and irrational. He admits as much in his letter in Volume III. As a police officer, as an officer of long experience, as a role model to junior officers, as a citizen and as a human being he treated Mr. Love abominably. Mr. Love’s behaviour may make him unlovable at times, but nothing could justify what happened in that back room.
57. Mr. Grant has pleaded guilty. I take his plea as a genuine sign of remorse. Of shame even. I think he made foolish choices in his litigation strategy, but he has owned up to the wrongfulness of his conduct that night. I take Mr. Grant’s significant charitable donation to a community organization of a type relied upon by Mr. Love as an added recognition by Mr. Grant of how seriously he lost perspective that night. I am sure that the long process has impacted Mr. Grant, even if much of that length is of his own doing. I am entirely satisfied that what Mr. Grant inexplicably did that night is entirely out of character.
58. For an officer of any lesser standing than Mr. Grant, I would think that a discharge would be a real stretch for an offence of this nature. It is in that reality that even a discharge for Mr. Grant could contain an element of general deterrence for other officers because it is hard to imagine many officers who could demonstrate the same long-term pattern of commitment to public service in policing, to mentoring, to skills development, to the maintenance of high standards[^1], to the emotional support of his subordinates, to coaching and fundraising in the community, not once or twice but in the long term, and on and on and on and on. In assessing the suitability of a discharge for Mr. Grant, I note the language of Code J. in R. v. Thomas, 2012 ONSC 6653. Thomas was in many ways a very different case, one involving the use of excessive force in the course of a lawful arrest and the original sentence had been jail. In reducing the sentence to a probationary sentence, Code J. adverted to the officer being, “an unusually skilled police officer who had served his community in an exceptional way.” Those words resonate when one considers Mr. Grant’s history. What Mr. Grant and Mr. Thomas shared was that they stood out at an unusually high level of professional performance and community engagement and the case-specific weighting of the need for general deterrence must recognize that some defendants will be true outliers. Recognizing that Mr. Grant’s treatment of Mr. Love was entirely out of character, in Mr. Grant’s own words, his “worst moment”, does not minimize the seriousness of what Mr. Grant did, but it does place it in context. Placing bad behaviour in context is a large part of sentencing. One does not throw the baby out with the bath water.
59. I am of the view that the need for specific deterrence here is minimal. The likelihood of Mr. Grant reoffending is infinitesimal.
60. With respect to the need for denunciation, I would hope that the court’s voice comes across loud and clear in what I have said herein. Professionalism, respect and humanity must be the baseline standard for all police interactions with the public, whether they be complainants or offenders, whether they be self-harming mentally distressed individuals or public nuisance mentally distressed individuals and so on.
61. The objectives of rehabilitation and reparations to society for the breach of trust inherent in Mr. Grant’s misconduct can both be accomplished within the framework of a conditional discharge.
62. I am left, therefore, with a choice between two sentences, either of which would be within the appropriate range, namely the conviction sought by Mr. Scrutton or a conditional discharge with appropriate terms. I am of the view that despite the severity of Mr. Grant’s misconduct in the Subway kitchen, his track record over decades entitles him to the “lesser” of those two sentences, in the sense of the one that does not involve a criminal conviction, although it will otherwise be more punitive. Accordingly, the sentence I impose is as follows: a. A conditional discharge with probation for a period of two years. b. Report to probation not later than 4 p.m. on 25 April, 2022 and thereafter as required by probation. c. Your obligation to report to probation ends when have completed your community service to the satisfaction of your probation officer. d. Perform 120 hours of community service within the first eighteen months of the probation period. The community service is to be performed at an organization approved of by your probation officer for which you have not previously performed community service and which focuses on services for mentally challenged members of society. e. Sign releases and provide proof of compliance for your probation officer.

Released: 2 May, 2022

[^1]: One example lies in the performance appraisals where Mr. Grant had taken on additional duties to run the canine teams’ recertification process and on a couple of occasions had to deal with a particular dog and handler who were in danger of failing the recertification. Rather than compromise the service’s standards and let the team pass, Mr. Grant instead invested time in bringing the team up to standards, not once but at least twice.