ONTARIO COURT OF JUSTICE

Citation: R. v. MacLeod, 2023 ONCJ 71

DATE: 2023 02 09

COURT FILE No.: College Park, Toronto 21-75004464

BETWEEN:

HIS MAJESTY THE KING

— AND —

EWAN MACLEOD

Sentencing Judgment

Before Justice B. Jones

Heard on February 3, 2023

Reasons for Judgment released on February 9, 2023

R. De Filippis....................................................................................... counsel for the Crown

G. Clewley.......................................................................................... counsel for E. MacLeod

Jones J.:

Introduction

[1] Ewan MacLeod pleaded guilty to one count of breach of trust contrary to Criminal Code section 122(a). He is a police constable employed with the Toronto Police Service (“TPS”). At the time of the events underlying the guilty plea, he was assigned to 23 Division.

[2] On two dates in 2020, Mr. MacLeod conducted unauthorized searches on police databases. He shared information he obtained with an acquaintance named Victor Karanikolov.

[3] A pre-sentence report (“PSR”) was prepared. Mr. MacLeod is an Indigenous Canadian, and a Gladue letter was also provided by Aboriginal Legal Services of Toronto (“ALST”).

[4] Following a sentencing hearing conducted on February 3, 2023, I reserved my decision. These are my reasons.

Agreed Statement of Fact

[5] An agreed statement of fact was filed by the parties. The following is a summary of that document.

(i) Relationship Between Mr. MacLeod and Mr. Karanikolov

[6] Mr. MacLeod twice accessed and shared information available to him solely due to his position as a police officer without any legitimate reason. The beneficiary of this information was Mr. Karanikolov. They were acquaintances who primarily communicated via electronic messaging.

[7] In November 2020 Mr. Karanikolov was arrested and charged with selling stolen goods. His cell phones were seized by the Halton Regional Police Service. A search of the phones located a WhatsApp conversation between him and Mr. MacLeod. There are hundreds of messages in this conversation, most of which are largely social in nature. In some of these messages, Mr. Karanikolov discusses selling various goods that should have, at a minimum, raised concerns for Mr. MacLeod that he was trafficking in stolen property.

(ii) Toronto Police Service Policy

[8] TPS’ “acceptable use” policy defines confidential information as “all police information” including third-party information and personal information. The policy dictates that confidential information and TPS’ information and technology resources are “to be used for official business use only.” Mr. MacLeod was bound by this policy.

(iii) The First Incident

[9] On April 22, 2020, Mr. Karanikolov sent a message to Mr. MacLeod with a license plate number. On May 3, 2020, following a series of other messages requesting that he provide information associated with this license plate number, Mr. MacLeod performed a query on his police mobile workstation. He learned the registered owner’s name, address, date of birth, and vehicle information. He sent this information to Mr. Karanikolov.

[10] He then sent a follow-up message that stated, “Just make sure this doesn’t come back to me lol!” Mr. Karanikolov replied, “single malt coming your way chief.” This was a reference to a bottle of alcohol that would be provided to Mr. MacLeod as a way of returning the favour on a future date. It is unknown if he ever received this bottle.

[11] It is also unknown, what, if anything, Mr. Karanikolov did with this information. The registered owner was never contacted by Mr. Karanikolov.

(iv) The Second Incident

[12] On October 18, 2020, Mr. Karanikolov contacted Mr. MacLeod via WhatsApp again and provided a name and a phone number. Mr. MacLeod agreed to search police databases for information about this person. Mr. Karanikolov expressed concern this person was involved in a traffic accident with his grandmother and was trying to prove she was at fault.

[13] Later that same day Mr. MacLeod confirmed he learned of five prior occurrences on file with the TPS about this person. Mr. MacLeod sent the information he obtained to Mr. Karanikolov. He also included information about this person’s professional background. He worked at an auto body shop and Mr. MacLeod stated he appeared to be a “scammer.” He reassured Mr. Karanikolov that there was “absolutely no evidence” to suggest that his grandmother’s car was involved in the accident. He wrote, “I guarantee 100% police won’t be called.”

[14] Mr. MacLeod obtained this person’s driver’s license information including his residential address. He provided the address to Mr. Karanikolov. He also searched the Ministry of Transportation portal for details about the person’s registered motor vehicle. He subsequently provided the vehicle’s make, model, colour, and license plate number.

[15] An internal police investigation determined that Mr. Karanikolov never contacted this person and it is unknown, what, if anything, he did with the information provided by Mr. MacLeod.

Background of the Offender

[16] Mr. MacLeod is 45 years old. He was born in Thompson, Manitoba. He is married with four children. He has two half-sisters. He is of Haidi descent and is registered under the Indian Act with the Lax-Kw’alaams. The Gladue Letter provided by ALST contained the following information about Lax-Kw’alaams:[^1]

Lax-Kw’alaams, also known as Port Simpson, is an Indigenous village community in British Columbia, Canada, not far from the city of Prince Rupert. Historically, Lax Kw’alaams is a Tsimshian community, part of a group that occupied a large land area on the Northwest coast of British Columbia.

[17] When he was one year old, his family relocated to Ontario. He remembered moving around frequently as a child. He was sometimes able to return to visit the Raven Clan of Old Masset on Haida Gwaii in British Columbia in the summer.

[18] His mother is also Haida. His maternal grandparents adopted his mother and eventually took her to Brantford, Ontario to hide her so she would not end up in the residential school system. His father is not Indigenous.

[19] His parents’ relationship ended due to his father’s infidelity. He did not maintain contact with his biological father who died in 2015. His mother re-married and he has fond memories of his stepfather, Walter Peterson. Unfortunately, they separated when he was eight years old. His mother then met another man named Jerry Holloway. He was abusive and quite violent. Mr. MacLeod suffered bodily harm from him as did his sisters. Following a particularly terrible assault on one of his sisters, his family ended up in a shelter. His mother was later able to access Native housing.

[20] He had his first daughter in 1996. He was 19 years old and involved with a woman he knew from high school. They did not remain together, but he was able to see his daughter regularly. His ex-partner had challenges with alcoholism and Mr. MacLeod became the main caregiver for his daughter in 2007. He has not had contact with his daughter in approximately eight years since she moved to British Columbia and they became somewhat estranged.

[21] He had a son with another woman in 2006. That relationship also did not last, but he remains on good terms with his ex-partner and they continue to co-parent well.

[22] In 2003 he met his wife. They married in 2018 and have two children together. His wife describes him as a great father. He is always there for his children and does not want them to experience the difficulties he did growing up.

[23] Mr. MacLeod graduated high school and attended Aboriginal Police Foundations at Mohawk College in Brantford. He was hired by the TPS. He developed post-traumatic stress disorder (“PTSD”) as a result of his 21 years of service. In his own words, he has “seen too much.”[^2] This included gunshot victims, stabbings, and tragedies involving children.

[24] Early in his career he struggled with alcoholism and prescription drugs. He was drinking daily for nearly ten years, consuming six to seven cans of beer per day and two 40z bottles of vodka per week.[^3] As a result of serious dental surgery, he required a prescription for Percocet in 2019. He found dealing with the pain difficult. The surgery had to be redone due to an error and he became addicted to painkillers. He blames the “stupid decisions” he made due to this addiction. He admits he did not see the problems that had been overwhelming him in his life at the time he committed the offence and believes that being charged “probably saved my life.”[^4] He nevertheless fully accepts responsibility for his actions and admits that he should never have given out confidential police information to Mr. Karanikolov.

[25] Since he was charged Mr. MacLeod attended the Homewood Rehabilitation Centre in Guelph for a nine-week program for substance abuse and PTSD. He was diagnosed with a severe alcohol use disorder.[^5] He also attends the H.E.A.R.T. Group, a rehabilitation service for police officers who have been charged. In this group, he has a supportive setting to discuss the occupational stresses, addictions, and mental health concerns that can be associated with police work. Additionally, he has been attending sessions with a psychologist since September 2021. He views each of these services as essential to his healing process.

[26] He has no prior criminal record.

Personal Letter Written To The Court

[27] Mr. MacLeod wrote a very moving letter to the court expressing his remorse for the offence. He explained the importance of his Indigenous heritage in his life. In his own words, “it defines me.” His core values and beliefs were formed through his upbringing within his native community. As a child, he was taught by elders of the Raven Clan of Old Masset, on Haida Gwaii, about their traditional ways of living. When he moved to Brantford, he developed deep and meaningful ties to the Indigenous community of Six Nations of the Grand River. He has a large group of Indigenous friends with whom he remains very close.

[28] As he struggled with the emotional toll of being an officer[^6], and when he was in the “grips of addiction”, he became isolated from everyone he cared about. He realizes now that his disassociation from his Indigenous culture was partially responsible for the “terrible choices” he made. It was only after he experienced the crisis in his life that he began to appreciate how important his Indigenous community would be to his path of healing.

[29] Since he was charged he has been developing a greater understanding of his heritage from his mother and elders in the community. He hopes to return to live in B.C. in the future.

[30] Importantly, he described how his Indigenous heritage sometimes presented him with unique challenges during the course of his policing career. At times he was made to feel inferior at work and wondered if some doors were closed to him. Despite these barriers, Mr. MacLeod had what can only be described as an exemplary career in law enforcement. He has been the recipient of awards and multiple letters of commendation.[^7]

[31] He hopes to atone for his mistakes and embrace his culture as he continues his journey to redemption.

Position of the Parties

[32] The Crown seeks an 8-month conditional sentence. Ms. De Filippis submits that Mr. MacLeod breached the standards of responsibility and professional conduct demanded of him by his position as a police officer. He knowingly breached the privacy rights of two civilians. While no harm befell the victims, Mr. MacLeod’s actions betrayed the public trust placed in him.

[33] Ms. De Filippis filed a book of authorities in support of her position. I will address some of those cases later in these reasons. Overall, they emphasize the need for deterrence and denunciation in cases of police officers found guilty of breach of trust. Generally speaking, officers should expect to receive stricter punishments for criminal activity as a result of their position. A discharge would simply not adequately reflect the gravity of Mr. MacLeod’s conduct.

[34] Mr. Clewley submits that a discharge is an appropriate sentence. He argues that the Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC), called for a “large and liberal” interpretation and application of section 718.2(e) as it is remedial in nature: see para. 32. The jurisprudence that has developed over the last twenty years makes it abundantly clear that sentencing courts must take a different approach in appropriate cases to meaningfully address the unique circumstances of Indigenous Canadians.

[35] This is one such case. Mr. MacLeod’s personal circumstances cry out for a restorative approach to justice. Gladue cannot, and should not, be left as an empty promise. Creative and innovative solutions which recognize the serious and ongoing social problems affecting Indigenous Canadians are required. He does not dispute the general principles of law articulated by Ms. De Filippis but rightfully notes that none of the cases relied upon by the Crown involved an Indigenous offender.

[36] Undeniably, Mr. MacLeod lost his way for a period of time and mistakenly chose to keep his demons at bay with excessive drinking. Since he was charged, Mr. MacLeod has demonstrated a genuine commitment to his rehabilitation and insight into the wrongfulness of his actions. Mr. Clewley concluded his submissions by asking me to consider something different than the usual penalty for this offence in light of the remarkable accomplishments that Mr. MacLeod has achieved. These accomplishments, he noted, came about despite the staggering personal challenges he has been faced with since he was a child. A conviction would be a disproportionate penalty that could carry with it severe collateral consequences including the end of his policing career.

Sentencing Principles for Breach of Trust

[37] Proportionality is the fundamental principle of sentencing. A sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”: Criminal Code s. 718.1. The degree of responsibility of the offender requires consideration of the offender’s moral blameworthiness. Assessing that moral blameworthiness must be done through the perspective of the offender’s life experiences and personal characteristics: R. v. Morris, 2021 ONCA 680, at para. 88. This process of individualization is “central to the proportionality assessment”: R. v. Parranto, 2021 SCC 46, at para. 12.

[38] The paramount sentencing objectives for the offence of breach of trust are general deterrence and denunciation: see R. v. Letkeman, 2021 MBCA 68 at para. 51. Police officers in Ontario, by law, are required to swear or affirm to “preserve the peace, prevent offences and discharge…duties…faithfully and according to law”: see Ont. Reg. 268/10, section 2, issued under the Police Services Act, R.S.O. 1990, c. P.15. Beyond the offence itself, breach of a position of trust is deemed an aggravating factor in sentencing: Criminal Code section 718.2(a)(iii).

[39] As noted by Justice Hill in R. v. Cook, 2010 ONSC 5016, “police officers, as officials discharging public duties, occupy a special position of trust in the community”, which makes a breach of their duties very serious: see para. 29. Furthermore, that a police officer is otherwise of good character must be viewed with caution as a mitigating factor. It is that very “character profile which allows an individual to attain a position of trust”: see R. v. Williams, 2007 CanLII 13949 (ON SC), at para. 25.

[40] In R. v. Schertzer, 2015 ONCA 259, the Ontario Court of Appeal held that generally speaking police officers who commit offences will be subject to more severe sentences because of their position of public trust: see para. 133; see also R. v. Burke, 2019 ONCJ 958 at para. 52.

Gladue Principles

[33] Criminal Code section 718.2(e) states that

all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[41] In R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada held that section 718.2(e) directs sentencing judges to consider (1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.

[42] In R. v. Swampy, 2017 ABCA 134, the Alberta Court of Appeal held that “[t]here can be no sound proportionality analysis in the case of an Aboriginal offender without considering the impact of the offender’s Aboriginal heritage on [their] moral culpability”: see para. 36; see also R. v. Lavallee, 2022 MBCA 100 at para. 31.

[43] There is no requirement for an offender to demonstrate a causal connection between “systemic or background factors” and the offence before the court. But an Aboriginal offender cannot simply point to the systemic and background factors referenced in Ipeelee. Rather, he must demonstrate they are “tied in some way to the particular offender and offence” see para. 86; R. v. F.H.L., 2018 ONCA 83, at paras. 38-41.

[44] Section 718.2 (e) of the Criminal Code encompasses the values of restorative justice. In Gladue, the Supreme Court explained that the “concept and principles of a restorative approach will necessarily have to be developed over time in the jurisprudence, as different issues and different conceptions of sentencing are addressed in their appropriate context”: see para. 71. A sentencing court should consider the needs of the victims, the community, and the offender.

[45] The Supreme Court of Canada’s recent decision of R. v. Hilbach, 2023 SCC 3, instructed trial judges to consider that “the effects of a sentencing measure may be particularly severe when circumstances affecting Indigenous offenders are considered”: see para. 45. This is not confined merely to cases where the Crown seeks a sentence of incarceration. For example, in R. v. Boudreault, 2018 SCC 58, the Supreme Court noted that the mandatory victim fine surcharge was unconstitutional as it did not permit a judge to “adjust the sentence for Indigenous offenders”: see para. 94.

[46] Fundamentally, to fulfill their duty, judges must approach the sentencing of Aboriginal offenders differently “because the circumstances of Aboriginal people are unique and call for a special approach”: see R v. Kakekagamick, 2006 CanLII 28549 (Ont. C.A.), at para. 39.

Test For A Conditional Discharge

[47] Criminal Code section 730(1) establishes two requirements before a court may impose a discharge:

(i) the court must be satisfied that it is in the best interests of the accused;

(ii) the court must be satisfied that it is not contrary to the public interest.

[48] There is no doubt that a discharge would be in Mr. MacLeod’s best interests. The Crown disputes that a discharge is not contrary to the public interest due to the serious nature of the offence of breach of trust.

[49] In R. v. Taylor (1975), 1975 CanLII 1147, 24 C.C.C. (2d) 551, the Ontario Court of Appeal held that a discharge is appropriate when an offence seems “out of character” or that the offender was struggling with “mental turmoil or some unusual disturbance in his life’s routine”: see p. 552. In R. v. Turner, 2022 ABCA 11, the Alberta Court of Appeal held that a discharge should be imposed when a crime is an “aberration attributable to stimuli that will probably never exist” in the future: see para. 38.

[50] In R. v. Meneses (1974), 1974 CanLII 1659, the Ontario Court of Appeal held that the need for deterrence to manifest itself through a conviction may give way when “other considerations are more paramount, and when the broad view of the public interest is considered”: see p. 117.

[51] The New Brunswick Court of Appeal held in R. v. LeBlanc, 2003 NBCA 75, that a conditional discharge should be imposed rarely in cases of police officers found guilty of the offence of breach of trust. At para. 33 the court wrote[^8]:

Breach of trust is an indictable offence. Under s. 122, the offender is liable to imprisonment for a term not exceeding five years. In my view, only the most exceptional circumstances can justify a discharge, absolute or conditional, for a breach of trust by a police officer in the execution of his duties. There are no such circumstances in the case at bar.

Analysis

[52] Mr. MacLeod abused his position as a police officer when he provided personal information about two civilians to Mr. Karanikolov. While there is no evidence they suffered in any way due to the release of this information, the risk that they would have their privacy and security compromised in some fashion was obvious. Mr. Karanikolov might have used this information for an unlawful purpose or to gain an unfair advantage. There is no excuse for this abuse of Mr. MacLeod’s authority. The public must have confidence that those entrusted to be police officers will not breach the high standards of professional responsibility associated with their position. Such conduct erodes the faith and trust of members of the public place in the police.

[53] Justice Carnegie of the Ontario Court of Justice described the particularly concerning features of unlawfully disseminating confidential information in R. v. Gregory, 2022 ONCJ 605 at para. 49:

I believe this offence narrative represents a cautionary tale to all peace officers about the importance of maintaining vigilance and respecting their duties toward 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. 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.

[54] Ms. De Filippis is therefore correct to emphasize that an officer’s decision to unlawfully share confidential information typically denotes a high degree of moral culpability: see R. v. Doering, 2020 ONSC 5618 at para. 30.

[55] Yet the particular circumstances of this offence must be placed in their proper context. Mr. MacLeod was suffering from addiction issues due to his long career with the TPS. He had been through a painful surgery that required him to take prescription painkillers. Through no fault of his own, this exacerbated his addiction problems. While he should never have provided any confidential information to Mr. Karanikolov, he did not do so for personal profit. He also had no reason to believe that anyone’s safety would be endangered by his actions. Mr. Karanikolov was not known to be a dangerous person and the information sought was not linked to any criminal activity.

[56] No evidence was stolen or misappropriated. No investigations or prosecutions were compromised. No direct harm to anyone occurred.

[57] Mr. MacLeod has been an upstanding member of the community and the TPS. But for this offence, he has had an excellent career. Despite experiencing abuse and upheaval as a child, he has educated himself, maintained employment, and been a loving and caring father to each of his children. He is a pro-social, contributing member of society. Through his public service as a police officer he tragically yet understandably was exposed to traumatic events that took a toll on him emotionally. He fell into a terrible pattern of addiction that he is now taking meaningful steps to address. I find that these factors played a crucial role in his commission of the offence.

[58] Mr. MacLeod’s good character, strong community support network, and sustained and sincere efforts at his rehabilitation all weigh heavily in favour of a discharge. His offences were borne out of his struggles with addiction and the emotional turmoil he was experiencing. He is now on his healing journey, connected with both medical and Indigenous support services. He has made tremendous progress and I am satisfied that progress will continue. The factors that led to this offence occurring will almost certainly not exist in the future.

[59] While Mr. MacLeod’s long-term rehabilitation cannot be given equal weight with the need to prioritize deterrence and denunciation, it remains an important factor to consider: Letkeman, supra. A conviction may adversely affect his ability to seek and maintain employment in the future which would have a negative impact not only on him but also on his ability to support his spouse and children.

[60] Furthermore, properly assessing Mr. MacLeod’s moral culpability requires an appreciation of how and why he became disassociated from his Aboriginal heritage. While he lost his connection to that heritage during the course of his policing career, that does not preclude its consideration at sentencing. In R. v Kehoe, 2023 BCCA 2, the British Columbia Court of Appeal held that Gladue principles still play an important role in these circumstances. At paras. 55-56 the Court held:

[55] As a consequence of Canada’s colonial history and assimilationist policies, many Indigenous people have become disconnected from their ancestral communities, cultures, and associated positive social structures. This disconnection has contributed to the social and economic marginalization of Indigenous people in Canada, including their disproportionate interactions with the criminal justice system.

[56] Disconnection is one of the very harms associated with Canada’s colonial history and assimilationist policies that Gladue and Ipeelee seek to address. Accordingly, the Crown’s reasoning that Gladue principles should play a very limited role in this case because Mr. Kehoe was disconnected from his Indigenous culture, and community and supports, subverts the remedial purpose of s. 718.2(e) of the Code and penalizes Mr. Kehoe for the success of Canada’s destructive policies.

[61] The Ontario Court of Appeal expressed similar sentiments in R. v. Kreko, 2016 ONCA 367. Furthermore, as noted in the Gladue letter from ALST, Mr. MacLeod’s isolation from his Aboriginal identity is unfortunately not uncommon. Nevertheless, the connection to that cultural identity is deeply important. Aboriginal cultural identity is a complex set of features reflecting how one thinks about oneself as an Aboriginal person and one’s place in a larger, supportive community.[^9] A connection to that community creates a sense of belonging and is of central importance to Aboriginal culture.[^10]

[62] I note that Ms. De Filippis did not adopt the position of the Crown taken before the British Columbia Court of Appeal in Kehoe. Through her comprehensive, fair, and indeed, enlightened submissions, she acknowledged the great importance of Mr. MacLeod’s Indigenous culture to him personally and the weight that factor should be given to my ultimate decision. Her principled position was based on the body of reported case law that has developed surrounding the seriousness of the nature of the offence of breach of trust.

[63] Mr. MacLeod’s recent loss of his cultural identity can be traced back to the systemic disadvantages faced by Canada’s Indigenous peoples. While his mother did not personally experience the residential school system, she was removed from her traditional community to avoid being placed in one. The mere existence of that system, therefore, affected his life’s trajectory and played a central role in his eventual disconnection from the Haida Nation. His life as a child was sadly often tumultuous and marked by significant upheaval. He both witnessed and suffered from physical abuse at the hands of one of his mother’s intimate partners. When his family sought refuge from their abuser, they experienced the difficulties of the shelter system as they grappled with how to support themselves and maintain some semblance of stability in their lives.

[64] Notwithstanding those very difficult childhood experiences Mr. MacLeod was able to support himself through high school and complete post-secondary education. He relied on food banks and student welfare when available and worked part-time. His industriousness is nothing short of tremendously impressive. His early childhood experiences with the Lax Kwalaams and the subsequent friendships he developed with members of Six Nations of the Grand River have proven to be critical to his sense of cultural identity.

[65] He has entered a plea of guilty which demonstrates his remorse and also saved the court resources required for a potentially complicated and time-consuming trial. He sincerely regrets his actions. He demonstrates a great deal of insight into what personal circumstances and hardships precipitated the commission of the offence and how to ensure he never finds himself in such a situation again. He knows that he needs help and is doing everything reasonably possible to better himself.

[66] Ms. De Filippis provided me with several reported cases in Ontario for officers convicted of breach of trust that resulted in convictions and custodial sentences. Respectfully, I find each of these cases involved significantly more aggravating facts. In each case, the actions of the offender imperiled public safety or the integrity of ongoing police investigations and prosecutions. For example, In Burke, supra, the accused was the lone drug officer in his community. He became addicted to opiates and developed a cocaine habit. He stole seized drugs from an evidence locker which adversely affected eight active prosecutions before the courts. Justice Javed imposed a 12-month conditional sentence.

[67] In R. v. Kramp, 2014 ONCJ 780, the accused conducted seven CPIC database searches and dozens of searches on the Durham Police records management system without lawful authorization. She did this to assist persons with whom she had some degree of friendship. One of these persons was under investigation for possible illegal drug-related activities. She provided him with confidential information. In another case, the police executed search warrants on two residences related to another suspect. She provided that suspect with information about why the residences were searched and the potential jeopardy he was facing. Justice West imposed a suspended sentence and probation. The number of unlawful queries on police databases far exceeds what Mr. Macleod’s offence entailed and risked identifying an informant.

[68] In R. v. Petrolo, 2020 ONCJ 36, the accused was a paralegal working as a prosecutor who handled POA matters. She arranged for favourable dispositions of traffic tickets for friends of her then-boyfriend. A three-month conditional sentence order was upheld on appeal: see 2021 ONCA 498.

[69] R. v. Dominelli, 2018 ONCJ 906, involved an officer who assisted with the execution of a search warrant at a marijuana dispensary. The search team located 100 chocolate bars infused with cannabis oil. He stole three additional bars. The next day he and his partner consumed them while on duty. They experienced serious health consequences and had to call for assistance. Justice Misener found the accused had jeopardized public safety with his self-induced intoxication. He had his police-issued firearm at the time. The criminal case relating to the dispensary was terminated as a result of the evidence tampering. A conditional sentence was imposed.

[70] In Gregory, supra, the accused assisted his adult son with obtaining personal information about a man believed to have wronged him. He obtained, unlawfully, this man’s residential address through a search of confidential police sources of information and allowed his son to receive it. A short time later his son was part of a group of suspects who committed a violent home invasion at that address. The man in question died as a result. Justice Carnegie held it was reasonably foreseeable to the accused that his son would use the personal information for retribution and violence. The court imposed a 12-month conditional sentence. His son was convicted of manslaughter in the Superior Court of Justice and received a ten-year prison sentence: see R. v. Gregory, 2022 ONSC 4985.

[71] Mr. MacLeod’s offence was very different from these cases. His actions did not affect any investigation or prosecutions, and nor did they place any informants or witnesses in peril. As long as he continues with his treatment Mr. MacLeod can return to being a healthy, contributing member of society. That is in the public interest. Furthermore, a broader view of the public interest component of the test for a conditional discharge must encompass Gladue principles. These include the need to advance the goal of reconciliation and ameliorate the historic disadvantages experienced by Indigenous Canadians: see R. v. Harper, 2020 BCPC 226 at para. 32.

[72] In United States v. Leonard, 2012 ONCA 622, the Ontario Court of Appeal held that Gladue factors “should be considered by all ‘decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system’ (Gladue, at para. 65) whenever an Aboriginal person’s liberty is at stake in criminal and related proceedings”: see para. 85. In R. v. King, 2022 ONCA 665, the Ontario Court of Appeal expressly stated that “judges exercising discretionary power ought to be aware of the realities of the Indigenous people appearing before them.”: see para. 170.

[73] Discharges have been granted to police officers for the offence of a breach of trust where the nature of the offence and personal circumstances of the accused warrant that outcome. For example, in R. v. Murray, 2018 ONCJ 393, the accused developed PTSD from years of policing. He also suffered physical injuries, requiring medication to address his severe pain. He became addicted to opiates. He stole 44 oxycodone pills from an evidence locker and replaced them with another product to avoid detection. The court noted his lifetime of devoted service and genuine efforts to rehabilitate himself when imposing a conditional discharge.

[74] In another example, R. v. Gray, 2000 Carswell Ont 3572 (SCJ), the accused was a Sergeant acting as the pay-duty coordinator. He administered a program whereby officers would provide security and other services to members of the community for $40/ hour. Mr. Gray formed a private business and referred inquiries for pay-duty work to that business. He profited as a result. Nevertheless, in light of his “outstanding and lengthy record of policing service”, and despite his serious error of judgment, Justice Hill imposed an absolute discharge. The accused also cared for his sick wife, who required constant support.

[75] In R. v. Smith, 2021 ONCJ 234, the accused was a police officer with the Hamilton Police Service (HPS). The HPS required a form, called a “destruction waiver”, to be signed by a resident surrendering a firearm. Mr. Smith retrieved two firearms from two civilians and should have obtained their signatures on a form each time. Instead, he forged the required signatures to save himself from this minor inconvenience. He obtained no other benefit from his actions. Justice Nadel imposed a conditional discharge with 18 months probation including 75 hours of community service. The accused had been grappling with PTSD and abused alcohol as a coping mechanism. He regretted his actions and was seeking therapy.

[76] When deciding if a discharge is contrary to the public interest, I have considered whether or not it is necessary to emphasize general deterrence through a conviction. As noted by Hill J. in R. v. Hayes, [1999] O.J. No. 938 (S.C.J.) at para. 32, a conditional discharge can give adequate weight to this sentencing principle: see also R. v Agoston, 2017 ONSC 3425 at para. 42; R. v. Fantinato, 2018 ONCJ 710 at para. 39. I do not find a conviction is required to adequately incorporate general deterrence in the unique circumstances of this case.

[77] A lengthy probation period including community service hours may be required to bring home the significance of an offender’s behaviour: see R. v. Zhang, 2008 BCSC 674, at para. 17. I do not find that necessary for Mr. MacLeod. He was, and continues to be, actively engaged with the community and fully committed to this rehabilitation. He cares for his wife and children. I do not find there are any required terms of probation to protect the public. Mr. MacLeod had made it abundantly clear to me that he understands how wrong his actions were.

[78] I impose an absolute discharge.

[79] Ms. De Filippis and Mr. Clewley are commended for how they handled this case. The amount of effort they put into preparing comprehensive sentencing materials and acting cooperatively throughout the proceeding was truly impressive.

Released: Feb 9, 2023

Signed: Justice Brock Jones

[^1]: Gladue letter, page 2. [^2]: Gladue letter at page 5. [^3]: PSR at page 5. [^4]: Gladue letter at page 6. [^5]: Letter from Homewood Health Centre, August 9, 2021. [^6]: The letter provided by Homewood Health Centre includes details of the particularly traumatizing events of Mr. MacLeod’s policing career and the profound effects they had on his mental health. [^7]: “Defence materials submitted on sentencing”, filed on February 3, 2023. [^8]: Criminal Code section 122 is now a hybrid offence: see Bill C-75, S.C. 2019, C. 25, s. 35. [^9]: See Canada, Royal Commission on Aboriginal Peoples, “Urban Realities” in Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities, Vol. 4. (Ottawa: Supply and Services Canada, 1996) at 387, 389, as referenced in the letter from ALST. See also Rudin, J., Indigenous People and the Criminal Justice System: A Practitioner’s Handbook (Toronto: Emond Publishing, 2019) at 102-104. [^10]: See Berry, J.W., “Aboriginal Cultural Identity” (1999) 19:1 The Canadian Journal of Native Studies 1.