ONTARIO COURT OF JUSTICE
CITATION: R. v. Gregory, 2022 ONCJ 605
DATE: 2022 11 04
COURT FILE No.: London 20-8267
BETWEEN:
HIS MAJESTY THE KING
— AND —
TREVOR GREGORY
Before Justice M. B. Carnegie
Heard on April 8, August 23, 2022
Reasons for Judgment released on November 4, 2022
de Koning, K........................................................................................ counsel for the Crown
Butt, D........................................................................ counsel for the defendant T. Gregory
Sentencing Judgment
CARNEGIE J.:
[1] “The stability of society rests on the integrity of police officers.”[^1] This is because “police officers have opportunities, practically on a daily basis, to cross the line and engage in prohibited conduct. The public trusts them to resist the temptation and relies upon the courts to deal firmly with those who stray.”[^2]
[2] Here, Mr. Gregory, a police officer with the Toronto Police Service (“TPS”), has been found guilty of a breach of trust, contrary to s. 122 of the Criminal Code of Canada. On June 20, 2020 he strayed. He pled guilty to this offence on April 8, 2022, and counsel’s sentencing submissions were heard on August 23, 2022. Today, I have received victim impact from affected persons.
[3] The facts supporting this finding of guilt were filed as an Agreed Statement of Fact (Exhibit 1). A pre-sentence report (Exhibit 2) has been prepared to assist with outlining the offender’s background, which was substantively supplemented by counsel’s filed Sentencing Materials. Five Victim Impact Statements have today been filed and presented before me (Exhibit 3).
[4] For the reasons that follow, in consideration of the fundamental principle of proportionality, as well as the paramount principles of deterrence and denunciation alongside rehabilitation and restraint, I have determined that a fit sentence requires a custodial disposition. Mr. Gregory will be sentenced to 12 month custodial disposition, to be served in the community under a conditional sentence order.
Factual Background
[5] Mr. Gregory is 48 years of age. He was 46 years old at the time of this offence. He is employed with the Toronto Police Service (“TPS”) and has 21 years of policing experience. He is a married father of two sons. His eldest son, Keiron Gregory, has recently been convicted of manslaughter involving the shooting death of Bill Horrace, on June 21, 2020, in the City of London. The circumstances of that conviction intersect with the breach of trust offence before me today.
[6] On Saturday, June 20, 2020 at 12:08am, Mr. Gregory received a series of messages and a phone call from his son, Keiron Gregory, then 22 years old, advising that he had been “ripped off” of a large sum of money by a man involved in an illegal counterfeit money scheme. This man was later identified as Bill Horrace, who lived in Toronto but had a wife and two young children living in London, Ontario. Keiron had a licence plate number for this man’s motor vehicle. He provided Mr. Gregory with the licence plate number seeking to identify him and where he lived.
[7] Mr. Gregory agreed to help his son. By 12:15am he sent a message to a fellow TPS officer asking if he was at work, and whether he could run the plate number for him because a “[s]trange car creeping by my hood.” He received no response. At 12:21am he queried the licence plate number on Carfax Canada using his registered police Carfax account to learn that the vehicle was a grey Honda Civic. All the while, Mr. Gregory was receiving calls and or messages from his son, including this exchange commencing at 12:27am:
T: Was the car a Honda Civic??
K: Yes
K: Honda Civic grey
K: Plz tell me it’s registered to someone
T: Don’t know yet. I checked it on Carfax…doesn’t give me much…just the type[^3]
[8] At 12:31am, Mr. Gregory sent a message to a second TPS officer to see if he was working. There was no response. At 12:38am, he sent a message to a third TPS officer asking if he was a work. Again, no immediate response was received. Then, commencing at 12:43am, a further messaging exchange occurred between Mr. Gregory and Keiron:
T: Which hotel were you at??
K: Harbour castle
K: 2440
K: Room
T: Friend has not responded so he’s probably working days
K: Idk like there must be a way to get this guy[^4]
[9] At 12:45am, Mr. Gregory called the TPS’s 53 Division front desk and spoke with an officer there. He requested that the officer query the licence plate number and told him it was for “a suspicious vehicle”. At 12:47am, accessed the Ontario Ministry of Transportation database and queried the requested plate. He provided Mr. Gregory with the name and address of the registered owner of this vehicle. Mr. Gregory wrote this information down on a piece of paper inside his residence. This information identified Mr. Horrace’s spouse’s name (she was the registered vehicle owner) and the London residential address for her and her children.
[10] At 12:49am, Mr. Gregory messaged Keiron asking if he was near “the house” – the Gregory home in Toronto. At 12:51am, Mr. Gregory called his son and had a conversation for 4 ½ minutes. At 1:16am, Keiron messaged Mr. Gregory:
K: Come in backyard
K: I’m here
T: 1 sec[^5]
[11] At around 1:16am, Mr. Gregory let his son into the residence. They entered the room where the piece of paper with the registered owner’s information was located. Mr. Gregory said nothing to Keiron and then left the room. Keiron took a photo of this piece of paper on his cell phone at 1:21am.
[12] For purposes of this plea, the offender admits that he was “wilfully blind” to the transfer of this information, and as a result, is as responsible for Keiron obtaining this information as if he had handed it to him directly.
[13] On June 21, 2020, at approximately 4:40am, a home-invasion occurred at the Horrace residence in London. Four male intruders, including Keiron, forcibly entered the residence yelling “where’s the money” at Mr. Horrace’s spouse. During this events, Mr. Horrace was shot in the chest and subsequently died of the wound. The intruders left with $20K and a cell phone belonging to a house guest. During this event, Keiron’s iPhone was found in the living room. His blood, confirmed through DNA comparison, was found at various places in the home. Both the deceased and Keiron’s blood were found in a recovered vehicle from Toronto which had been identified by eyewitnesses at the homicide scene.
[14] To affect this breach of trust offence, Mr. Gregory acknowledges that he used his position as a police officer to improperly access the subject information, and is responsible for his son gaining access to it, knowing that his son was involved in criminal activity. I have been invited by counsel, and do infer, that Mr. Gregory knew that Keiron was not intending to use this information for a peaceable purpose. He was reckless as to what Keiron would do with the MTO database information once it entered his possession. Finally, it is acknowledged that Mr. Gregory did not know that his son (or any other person) was intent upon committing a homicide prior to seeking, obtaining and allowing Keiron access to this MTO database information.[^6]
The circumstances of the offender
[15] Mr. Gregory was born in Jamaica, the eldest of six siblings. He moved with his family to Toronto in 1976. He had a supportive upbringing and maintains a positive relationship with his parents. In 1994 he met his spouse and there were married in 2003. He continues to reside with his supportive spouse. They have two sons, the eldest, Keiron, as noted, is now incarcerated serving a manslaughter sentence. Keiron displayed behavioural issues throughout his schooling and became involved in criminal activity. Their youngest son continues to reside with his parents.
[16] Mr. Gregory has an Honours Bachelor of Arts degree and a computer studies diploma. He has been employed in policing since 1999 and has worked in several units and contributed to a variety of community projects. He has been a volunteer basketball coach for seven years.
[17] To his pre-sentence report interviewer, Mr. Gregory described himself as a “genuine caring person, calm, hard working and a good husband and father.” Addressing the offending conduct, Mr. Gregory vaguely advised that, at the time, ”he was concerned for his son’s safety after his son notified him of a situation.” Perhaps demonstrating a lack of a full appreciation of his wrongdoing, he advised that “in the past he has engaged in work, such as arrests and checks, while off duty.”[^7]
[18] Counsel submits that Mr. Gregory had a ‘blind spot’ respecting his eldest some. This seems to be somewhat confirmed by the comments of his brother who notes that Keiron “was on a different path” and although Mr. Gregory tried “to work it out” his son “did stuff that contradicted [Mr. Gregory’s] beliefs.” Indeed, even in the face of his present charges, Mr. Gregory advised that he is “not mad” at his son but, instead, is simply “disappointed.” He hopes to make amends with his son and stated that “this process has been a learning experience.”[^8] None of these comments overtly describe an offender that has come to grips with the reality and harm that has been occasioned by his son.
[19] Members of Mr. Gregory’s family, friends and co-workers consistently report that this entire event is “heartbreakingly out of character for this offender”. He has a reputation as a leader and mentor at work who is “kind and compassionate”, “goes above and beyond” expectations and, ironically, is known at work to be “by the book”.[^9] Twenty-one glowing character references were submitted for my consideration which present a sharp juxtaposition from Mr. Gregory’s behaviour in the early morning hours of June 20, 2020. It is difficult to reconcile this disparity. Family, friends and co-workers all hope that he can endure this present setback and return to a career in policing. His TPS personnel file is littered with complimentary activity reports and commendations since 2007, which is juxtaposed against an absence of conduct complaints.[^10]
[20] Since his arrest, Mr. Gregory has been suspended from work and the family is now primarily financially supported by his spouse. He is taking medication for anxiety, depression ad panic attacks. He saw a registered psychotherapist through 2020, returning to therapy in the spring of 2022, to work on stress management and coping skills as well as symptoms of anxiety and grief. He has expressed feelings of guilt and shame, has lost his sense of pride and identity, and has appeared traumatized by what has happened.[^11]
[21] During allocution, Mr. Gregory offered an apology to the court, his colleagues, his family and the community at large. He acknowledged that his “lapse in judgment” contributed to a tragic result, and that “no words can express my remorse.” He accepts responsibility for his actions and it “pains him to know that he has let so many people down.” He wants to re-engage with his policing career but understands that it may practically be over. He is amenable to any counseling that is directed by this court. I found Mr. Gregory’s apology genuine and take it at face value.
The victim impact
[22] I was today presented with five victim impact statements from members of Mr. Horrace’s immediate family. Collectively, they represent what might reasonably be expected from a grieving family forced to come to grips with the lose of a spouse, father, brother and former spouse. Their grief is real, their loss is profound. A caring partner, loving father, supportive sibling and former spouse is no longer present in their lives.
[23] Each victim continues to experience this loss in their own way. The emotional and psychological toll upon each of them is noteworthy as they seek various treatments for the respective conditions. Further, most have been financially impacted by the loss of support that was associated with Mr. Horrace. Given the context of their loss, none of this is unexpected or surprising which, I am sure, comes as a small comfort them all. Of course, this sentencing determination can practically do little to assuage their grief and loss.
[24] Victim impact of this kind is terribly important to a contextualized understanding of results that were advanced by this offender’s conduct. Real lives have been forever altered by this tragedy that came to pass.
[25] In assessing this impact, however, I must be disciplined in distinguishing between the malfeasance of Mr. Gregory, and that of his son. Mr. Horrace tragically died at the hands of Keiron Gregory and his unknown accomplices, not this offender.
Positions of the Parties
[26] The defence seeks a non-custodial disposition consisting of a suspended sentence and period of probation. They emphasize that this unlawful conduct occurred once and was not self-interested or profit motivated. The offender has an exemplary service record with the TPS, has a wide network of support in the community, and is a first time offender with no criminal history. The resulting homicide, while tragic, provides context only respecting the ultimate use of the released information, but this context, it is acknowledged, shifts this matter away from what is submitted to be the usual range for one time police database breaches – a conditional discharge.
[27] The Crown seeks a custodial disposition to address the paramount sentencing principles of deterrence and denunciation. Based upon their summary election, they ask me to impose, in light of a summary conviction election, the maximum term of two years less one day in a reformation institution. This position is informed by what the Crown deems to be the most aggravating factor present, that this release of information enabled the Horrace homicide.
Legal Framework
Principles of Sentencing
[28] Section 718 of the Criminal Code highlights 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.” To achieve this purpose, the following objectives and principles are noted for my consideration:
(1) s. 718 highlights denunciation, deterrence (both specific and general), the separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility and acknowledgment of the harm done;
(2) s. 718.1 highlights that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender;
(3) s. 718.2(a) enumerates several relevant aggravating factors, including:
(a)(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim;
(4) s. 718.2(b) highlights the importance of parity in sentencing so that similar offenders for similar offences in similar circumstances receive similar sentences; and
(5) s. 718.2(c) highlights the importance of totality, here in particular when assessing the imposition of a restitution order.
[29] Proportionality is an important consideration for Mr. Gregory’s case. As the Supreme Court said in R v Lacasse, “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.”[^12] This fundamental principle is central to the maintenance of public confidence in the criminal justice system. It demands that the punishment “speaks out against the offence and punishes the offender no more than is necessary.”[^13] In so doing, it seeks to balance the principles of restraint and the importance of holding offenders accountable for their actions. The moral blameworthiness of the offender is important. Offenders who intentionally cause harm should be subjected to a greater punishment than those who did not intend the harm that flowed from their conduct.[^14] This point is emphasized by Mr. Gregory. He contends that he must be sentenced based upon his conduct and its foreseeable consequences alone, not upon an ultimate result for which he bears not moral culpability.
[30] The common law is clear that the paramount principles of sentencing for a police officer convicted of breach of trust are general deterrence and denunciation.
[31] In R v Cook,[^15] a case involving the sentencing of a police officer found guilty of attempting to possess a prohibited drug for the purpose of trafficking, possession of marijuana, thefts and breach of trust, Justice Hill of our Superior Court of Justice outlined an oft cited number of principles relevant to the sentencing of police officers. These principles were summarized in R v Greenhalgh[^16] as follows:
(1) Police officers, as officials discharging public duties, occupy a special position of trust in the community (para. 29);
(2) As in any line of work, the moral compass of an individual police officer may become untrue as he or she elects "to cross to the other side of the road and become a criminal". Police officers have opportunities, practically on a daily basis, to cross the line and engage in prohibited conduct. The public trusts them to resist the temptation and relies upon the courts to deal firmly with those who stray (paras. 31-32);
(3) When sentencing a police officer for a crime involving breach of the public trust the court may properly take into account that the accused would necessarily be well aware of the consequences of its perpetration (para. 35);
(4) Not surprising is the reality that individuals who find themselves before a criminal court convicted of a breach of trust crime are able to adduce abundant good character evidence - "[i]t is, of course, this very type of character profile which allows an individual to attain a position of trust" (para. 36);
(5) In any case involving conviction and sentence, the accused is stigmatized, more or less, by the process. While shame and disgrace may be amplified in the instance of a public official, these consequences are not to be over-emphasized in determining a fit punishment (para. 37);
(6) Quite apart from the police corruption offence in s. 122 of the Criminal Code, breach of a position of trust is a deemed aggravating factor in sentencing: s. 718.2(a)(iii) of the Code (para. 38);
(7) General deterrence and denunciation drive the sentencing process in abuse of trust prosecutions. In the absence of an exceptional mitigating factor (e.g., addiction), severe sentences are justified for police officer offenders to honour these sentencing principles (para. 38);
(8) While a police officer who breaches the public trust brings upon himself or herself the consequence of dismissal, that penalty falls to be considered within the totality of the circumstances worthy of review by a sentencing court. The jeopardy of loss of employment on the part of a police officer cannot trump the pressing need for denunciation and deterrence (para. 42); and
(9) Police officer offenders will almost inevitably serve much or all of the sentence in protective custody. This reality, involving as it does more limited social contact and institutional amenities, ordinarily warrants consideration in mitigation of punishment (para. 43).
Analysis
Aggravating and Mitigating Circumstances
[32] There are multiple aggravating factors to be weighed and balanced, including:
(1) the seriousness of this offending conduct. Instead of investigating or exploring legal channels to assist his son, Mr. Gregory rushed the other way understanding that his son wanted this information to enable a further confrontation with a person who had apparently defrauded him. Given his son’s motivation and known involvement in criminal activity, the resulting risk of violence was real and imminent;
(2) whether foreseen or appreciated, the release of this information led directly to his son and others conducting a home-invasion the next day which culminated in Mr. Horrace’s death. Again, the risk of violence between the offender’s son and the deceased was foreseeable, whether or not he knew about any homicide intention, and made more real by the provision of this contact information;
(3) his efforts to retrieve this information implicated the searching officer who was deceived by Mr. Gregory’s misrepresentation about a “suspicious vehicle” in his neighbourhood. Further, Mr. Gregory attempted to contact three other colleagues with the same deceitful approach in mind; and
(4) any like breach of trust is deemed to be a statutorily aggravating feature, pursuant to s. 718.2(1)(iii) of the Code.
[33] With respect to the actual information transfer, Mr. Gregory acknowledges that he was wilfully blind respecting the transfer of this information. Respectfully, that puts it mildly. Mr. Gregory wrote this sensitive information down on a piece of paper, allowed his son into the room where it was displayed, then left the room without apparently saying a word. The only inference that I can draw from this conduct is an effort, on Mr. Gregory’s part, to create deniability. The theory being, “If I don’t hand him the piece of paper myself, I somehow maintain some distance from what happens next.” Obviously, this plea corrects that corrupt premise. But, on June 20, 2020, Mr. Gregory’s actions bely a guilty conscience. His son had just been “ripped off” and he wanted to “get this guy”. He wanted this guy’s name and address so he could confront him and get his money back. Mr. Gregory knew of his son’s criminal background. He understood that Keiron was not looking for a peaceable solution. He knew, or ought to have known, that there was a real risk of violence on the horizon. Yet, he used his public office to get information which enabled that risk. Walking out of the room while his son took a photograph of the very information he was seeking says it all. He knew the risk he was taking by transferring this information to his son and he did not want to be in the same room while it happened. He wanted deniability and he betrayed himself in the process.
[34] But that was not enough. In his discovery process, he risked implicating four fellow officers in the release of this information. He lied to colleagues about a “suspicious vehicle” in his neighbourhood in order to dupe them into getting him this information. And, it all had to happen immediately. He was on his son’s schedule. Off shift, he had the perfect opportunity to cool and slow things down until his next work shift. Instead, he fed a frenzied situation by providing timely and inflammatory information. From the start, he should have been investigating an alleged crime, not contributing to make it foreseeably worse. He entirely disregarded accumulated professional ethics 21 years in the making. This goes beyond having, as counsel argued, a ‘blind spot’ for his son. He did not, as was stated repetitively, simply love his son too much. Mr. Gregory had all the tools and experience to make an independent and better choice. Instead, he chose to prioritize his son’s needs over his professional duty to keep our community safe.
[35] Mr. Gregory argues that the fact of the Horrace homicide is relevant to this sentencing hearing only in so much as it provides a context and narrative to how this occurrence became a criminal prosecution rather than, as is more common, an internal disciplinary proceeding under the Police Services Act. He argues that the fact of the Horrace homicide cannot be considered relevant to the sentence this court must impose. As Mr. Gregory possessed no mens rea with respect to this London homicide, he should not be sentenced as if he aided or abetted in its commission. To the later I agree. However, the former contention overstates the point.
[36] The resulting effect of a breach of trust, when it can rarely be ascertained, is routinely considered by courts as an aggravating feature which helps inform the assessment of the proper range of sentence for that particularized criminal conduct. Clearly, an offender can only be sentenced within a fit range of sentence for the offending conduct. But, assessing the fit range of sentence for a breach of trust can and must include consideration of the actual harm done occasioned by the breach, or the associated risk of harm occasioned by the nature of the offender’s transgression. Here, Mr. Gregory intended to use his public office for a purpose other than the public good and, in so doing, his receipt and release of this confidential information constituted a “serious and marked departure from the standards expected of an officer in his position.”[^17] Mr. Gregory’s misconduct, while alive to the risk that his son was intent upon “get[ting] this guy”, can only be contextually understood if the straight line result, which was admittedly out of his hands, is acknowledged as an aggravating feature. Otherwise, an offender could absolve themselves of responsibility for the harm occasioned or facilitated by their breach of the public’s trust. They would be absolved from their fashioned wilful blindness. This cannot be permitted. Treating this matter as an aggravated form of breach of trust, due to the associated homicide that was facilitated by the release of this information, is not the same as engaging in a back door manslaughter sentencing for this offence. The later approach to this sentencing would result in a range well in access of what the Crown is presently seeking.
[37] Beyond these aggravating features, there are also multiple mitigating factors to be weighed and balanced, including:
(1) that he is a first time offender who has pled guilty saving the family and court the burden of a trial in this proceeding. To his credit, I understand and accept that it has always been Mr. Gregory’s intention to accept responsibility and resolve this matter by way of guilty plea;
(2) that he has a wide network of support within the community;
(3) that he has a positive employment record that has been tarnished due to the resulting suspension now in place for over two years;
(4) that he faces further professional disciplinary proceedings under the Police Services Act that could result in his dismissal, particularly if he is sentenced to a custodial period;
(5) that this matter has unsurprisingly attracted significant publicity occasioning stigma and loss of reputation; and
(6) that he has suffered substantive negative mental health ramifications stemming from the effects of this matter upon himself and his family.
[38] Unsurprisingly, Mr. Gregory has presented this court with an array of reference letters testifying to his good character which are varied and impressive. Without question, he is viewed by a variety of community members as a positive local leader. But, I cannot overemphasize this mitigating factor. As noted in like sentencing cases, it should come as no surprise that a police officer can present positive references from their community. It is these admired character traits that put them in a position to obtain their position of trust.
[39] By all accounts, other than his off-duty “checks” commentary to the Pre-Sentence Report interviewer, Mr. Gregory has provided exemplary policing service to his community. This evidentiary record makes obvious that this offending conduct is not part of a pattern of repetitive abuses of this offender’s policing authority.
[40] Mr. Gregory is well supported within his family and in the community. He does not present as a present risk to members of the public.
[41] It is conceded that while my role is not disciplinary from a professionalism perspective, these charges have had a substantive deleterious effect upon Mr. Gregory’s policing career which, if he is sentenced to a custodial disposition (including a conditional sentence order) that career may, practically speaking, be over.
What is a fit sentence for this offence?
[42] The range of sentence for breach of trust cases is admittedly broad. There is no minimum punishment nor statutory bar to the full range of sentencing options. Counsel have provided authorities which highlight ranges of sentence between conditional discharges[^18] through to federal and provincial periods of incarceration.[^19] Naturally, the degree of aggravating features distinguish each of these cases. I will refer to some of these breach of trust cases which, I believe, most closely mirror the aggravating and mitigating circumstances here.
[43] In R v Kramp, a police officer conducted unauthorized queries on an internal police database and provided intelligence information to friends associated with the Hells Angels MC. The court determined that this dissemination of the information risked exposing the identity of a confidential informant but, ultimately, it did not compromise any ongoing investigations or prosecutions. She had addiction issues, was in an abusive relationship and had been subjected to prolonged stringent bail conditions. This officer was sentenced to suspended sentence with a period of probation.
[44] In R v Darnley,[^20] a police officer released confidential information to members of a drug subculture, including her fiancé. This information included the existence of active wiretap authorizations. She also provided copies of various witness statements and discussed those them with drug dealers. She was principally motivated to prevent her fiancé from being implicated in pending drug trafficking investigations. She was sentenced to a 16 month conditional sentence, credited with being a first time offender and the sole caregiver of an infant child.
[45] In R v Uljar, a Service Ontario customer service representative made multiple inquiries in relation to registered owners of various vehicles and provided this information to a member of a known criminal organization, a street gang. This information was being utilized to facilitate revenge drug rips against rival gangs. She was sentenced to an 18 month conditional sentence order.
[46] In R v Maranan, a civilian employee working for the Toronto Police Service conducted numerous unauthorized internal police database inquiries and released a variety of revealed confidential information to third-parties involved in criminal organizations. She received financial compensation for her efforts. It was not proven that she knew the specific uses to be put to this disseminated information but agreed that she was willfully blind as to the results of her efforts. The court noted that the release of this information did not compromise any particular investigation or prosecution, nor did it result in any harm coming to any particular person. However, she was deemed to be alive to these risks and that her conduct could erode public confidence in the TPS and the administration of justice. She was sentenced to 12 months incarceration, credited with being a first offender and the sole caregiver for a young autistic child. Given the scope of her conduct, a conditional sentence was deemed insufficient to address the necessary principles deterrence and denunciation.
[47] In R v Rudge, a police officer released confidential investigative materials to members of the Hells Angels MC, namely four highly sensitive intelligence reports. The officer had developed a relationship with the common law spouse of one of the HA members. The provision of the internal police intelligence compromised ongoing investigations and adversely impacted the reputation of the policing service with numerous informants now disinterested in assisting police for fear of being exposed. The officer was sentenced to 4 years incarceration, largely as a result of the extent of harm occasioned by his conduct.
[48] These precedents largely involve police or public officers engaged in the unlawful release of confidential information. With one exception, these were not profit motivated offences but instead were occasioned to facilitate personal relationships, as here. The extent that these unlawful releases impacted upon ongoing investigations were variously considered as aggravating factors on the respective sentences. Each offender was deemed to be alive to the risks that would result from the release of this confidential information.
[49] I believe this offence narrative represents a cautionary tale to all peace officers about the importance of maintaining vigilance respecting their duties towards the protection of confidential information. Police are entrusted with this information because it enables them to more effectively investigate crime or otherwise serve the public. With that trust comes a significant responsibility to protect against the improper dissemination of this information. Indeed, internal police protocols are set in place to monitor, wherever possible, what and when is accessed from various police accessible databases. This is for a reason, to internally deter access to information outside legitimate investigative purposes. The risks of improper access to information are well known. For example, the dissemination of informant information can put lives at risk.[^21] Revealing intelligence information can scuttle active investigations and deter criminal apprehension. Disclosing an individual’s background information can dramatically impact them personally and financially. And, as noted here, even the release of presumably innocuous vehicle registration information can target parties for harm, or worse. If the public believed that confidential information accessible to police was routinely accessed for personal, even illegal, purposes, confidence in the administration of justice would suffer greatly.
[50] As has been noted, a paramount sentencing consideration for any breach of trust matter is deterrence and denunciation. A message must be sent to those in positions of authority that the improper dissemination of confidential information from police accessible databanks risks lives. This case is a clear example of that.
[51] I am sure that Mr. Gregory is mortified that the information he permitted to be released was used to commit a home-invasion resulting in a homicide. He did not foresee this as the necessary result. He did, however, foresee that retribution, and associated violence, was a real possibility as his son desperately sought out the person who had stolen from him. Mr. Gregory turned away from this risk, and is so doing became part of it. He knew his actions were wrong and illegal and risky and he was aware that this risk extended to his own professional duties. That is why he left the room. And he has, to some measure, paid a price for that risk. He has been suspended from his work for over two years. This conviction further puts at risk his future in policing. I fully understand that. But, that continuing risk was occasioned by his choice on June 20, 2020. A choice entirely incompatible with the public trust he has enjoyed for over 20 years. He will have to live with those professional consequences and this court’s disposition cannot but rendered unfit to potentially salvage his career.
[52] Tempering myself through the principles of restraint and rehabilitation, I must still emphasize both general deterrence and denunciation. Police officers of a like mind must understand that courts will treat very seriously any serious and marked departures from professional duties put in place to keep our community safe. Mr. Gregory knowingly put members of our community at risk, and the risk that was enabled proved tragic. Here, I am forced to conclude that, given the overwhelming aggravating features present, only a custodial sentence can adequately send the appropriate deterrent and denunciatory message. The imposition of a non-custodial disposition simply does not adequately address the sentencing principles of superordinate importance. Without the mitigating circumstances highlighted in this proceeding, I would have been convinced that an 18 month disposition fell within an appropriate range of sentence. However, balancing the mitigating circumstances presented, for which here there are many, I believe that a 12 month custodial sentence is fit, necessary and just.
Is a conditional sentence appropriate?
[53] I must, as recently reminded by our Court of Appeal in R v Ali, also consider whether a conditional sentence is appropriate by “considering, and weighing, the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives, including restraint and rehabilitation.”[^22] In R v Proulx, Lamer C.J. noted that conditional sentences are punitive sanctions which can meet the objectives of denunciation and deterrence in some cases. Punitive provisions, such as house arrest, carry a stigma that should not be underestimated and can provide “a significant amount of denunciation” and “significant deterrence”. However, he also noted that there will be cases “in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.”[^23] Finally, in R v Sharma, Feldman J.A. noted that “[e]ven in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on ‘the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served.”[^24]
[54] As I have noted, Mr. Gregory is a first time offender with an otherwise pro-social background. His offending conduct did not, itself, involve violence nor the sanctioning of it. Our Court of Appeal has held that “the restraint principle requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders. It is an error, especially when sentencing a first offender, to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation.”[^25] Here, given the isolated nature of this conduct, I do not believe that a traditional institutional setting is required to send the necessary general deterrent message. Nor do I believe that, beyond these proceedings and the remaining professional sanctions he will incur, Mr. Gregory requires any further specific deterrent message. One man has died. Mr. Gregory’s son is in prison. He will long be reminded of these facts and his association to them. If permitted to serve his sentence in the community, I have no reason to believe that he poses any further threat. As well, I am mindful that, as a police officer, Mr. Gregory would have to serve an institutional sentence in a harsher protective custody environment due to his professional association. The resulting limited social interactions, programming and available amenities would make more burdensome any period of incarceration. These are all factors that I cannot ignore.
[55] As a result, I am convinced that both deterrence and denunciation, even in the face of this cautionary tale associated with tragedy, can be satisfied with a 12 month custodial sentence that can be served in the community through the imposition of a conditional sentence order.
Ancillary Orders
[56] The Crown seeks an order pursuant to s. 487.051 to permit the collection of a samples of bodily substances in accordance with the DNA Identification Act. However, as I read this legislative regime, a breach of trust offence only qualifies for a DNA order if the Crown elects to proceed by Indictment and the maximum penalty is five years or more. Here, neither precondition has been met. I do not have jurisdiction to consider the Crown’s request.
Conclusion
[57] Mr. Gregory is sentenced to a conditional sentence order for a period of 12 months. I invite submissions respecting the associated terms and conditions.
Released: November 4, 2022
Signed: Justice M. B. Carnegie
[^1]: R v Rudge, [2014] OJ No 137 at para 55 [^2]: R v LeBlanc, 2003 NBCA 75, [2003] NBJ No 398 at para 27 [^3]: Agreed Statement of Fact, Exhibit 1, p 2 [^4]: Agreed Statement of Fact, Exhibit 1, p 2 [^5]: Agreed Statement of Fact, Exhibit 1, pp 2-3 [^6]: Agreed Statement of Facts, Exhibit 1, p 5 [^7]: Pre-Sentence Report, Exhibit 2, p 5 [^8]: Ibid, p 5 [^9]: Ibid, p 6 [^10]: Defence Sentencing Materials [^11]: Pre-Sentence Report, supra, p 5 [^12]: R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 at para 12 [^13]: R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 at para 42 [^14]: R v M(CA), 1996 CanLII 230 (SCC), [1996] 1 SCR 500 at para 40 [^15]: R v Cook, 2010 ONSC 5016, [2010] OJ No 4414 (SCJ) [^16]: R v Greenhalgh, [2011] BCJ No 745 (BCSC) at para 53 [^17]: See R v Boulanger, 2006 SCC 32, [2006] 2 SCR 49 [^18]: See cases resulting in discharges and suspended sentences: R v Gray, 2000 CanLII 22830 (ONSC): R v Murray, 2018 ONCJ 393; R c Marcoux, 2009 QCCA 1770; R v Spindor, 2016 BCPC 396; R v Whitney, 2015 BCPC 27; and R v Kramp, 2014 ONCJ 780 [^19]: See cases resulting in incarceration and/or conditional sentence orders: R v Rudge, [2014] OJ No 137 (SCJ); R v Taylor, 2012 SKQB 292; R v Cook, supra; and R v Lawson, [2001] OJ No 1562; R v Manaran, [2018] OJ No 4228 (OCJ); R v Uljar, 2016 ONCJ 513; and R v Senior, 2022 ONSC 136 [^20]: R v Darnley, [2016] OJ No 5711 (SCJ) [^21]: Rudge, supra; Senior, supra; Maranan, supra; Uljar, supra [^22]: R v Ali, 2022 ONCA 736, [2022] OJ No 4754 (CA) at para 28 [^23]: R v Proulx, 2000 SCC 5, [2000] 1 SCR 61 at paras 22, 102, 105, 106, 107 [^24]: R v Sharma, [2020] ONCA 478 at para 171 [^25]: R v Ali, supra, at para 40; see also R v Batisse, 2009 ONCA 114 at paras 32, 34