R. v. Dougherty, 2025 ONCJ 133

ONTARIO COURT OF JUSTICE

DATE: 2025-03-10
COURT FILE No.: Thunder Bay 23-42100983

BETWEEN:

HIS MAJESTY THE KING
— AND —
RYAN DOUGHERTY

Before Justice P.T. O’Marra
Sentencing Submissions Heard on November 19, 2024
Reasons for Sentence released on March 10, 2025

Counsel:
V. Karadzic — counsel for the Crown
M. Hargadon — counsel for the defendant Ryan Dougherty

Introduction

[1] In my reasons for judgment released on September 24, 2024, R. v. Dougherty, 2024 ONCJ 708, I found Officer Dougherty guilty of assault causing bodily harm. I found that while he was re-apprehending Mr. Semerling on November 8, 2022, the force he used was unreasonable, unnecessary, and disproportionate in the circumstances. As a result of the four closed fist strikes to his face, Mr. Semerling suffered a broken nose and a concussion. On November 19, 2024, I heard sentencing submissions and reserved my decision on the appropriate sentence to today. These are my reasons for sentence.

The Offence

[2] In the early morning of November 8, 2022, Officer Dougherty was at the Thunder Bay Regional Health Sciences Centre on an unrelated call; a nurse advised him that Mr. Semerling had left the Hospital and needed to be apprehended. Mr. Semerling was the subject of a Mental Health Act (M.H.A.) apprehension earlier in the evening. Officer Dougherty located Mr. Semerling walking on Oliver Road, near the Hospital.

[3] Officer Dougherty pulled up in his SUV cruiser and conversed with Mr. Semerling. He asked Mr. Semerling to get into the cruiser, intending to take him back to the Hospital. Mr. Semerling refused, which frustrated Officer Dougherty and led to a struggle resulting in Officer Dougherty bringing Mr. Semerling down. He placed Mr. Semerling on his back, pinned his arms under his knees on the pavement, thereby rendering him defenceless, and struck him four times in the face for not heeding his commands. Mr. Semerling was transported back to the Hospital in Officer Dougherty's cruiser and returned to the custody of the Hospital staff under the original M.H.A. apprehension. On November 9, 2022, Mr. Semerling returned to the Hospital and was diagnosed with a fractured nose and concussion.

The Victim Impact

[4] Mr. Semerling provided a detailed victim impact statement. The assault has profoundly impacted him. He described the impact as follows:

Every aspect of my life has changed since November 7, 2022. I cannot focus. I have crushing anxiety. I have recurring flashbacks every time I go outside. I cry, unprovoked. I have retreated from my family and friends. I do not work the same, I cannot work at the same pace. I cannot work for the same durations, and I cannot work with other people.
My biggest trauma….is now an ongoing and crippling fear of the police.
My stomach flips every time I hear a siren…..I will never call 911 again…Ryan Dougherty took away my sense of safety…my trust in police is now shattered.
I am afraid to go outside. I can’t be around other people. I have a rotting sense of dread in my stomach at all times. I no longer trust authority figures….I can’t do social service anymore because I don’t trust people…I no longer have financial security because I’m unable to function in a workplace. I had to sell my beautiful Port Arthur home because I am afraid of the police. I made the conscious decision to move out of Thunder Bay. My devastated mind requires constant support from my wife.
I live with psychological scars that continue to cripple my life.

The Positions of the Parties

[5] The Crown requests a suspended sentence of two years of probation under the statutory terms and a prohibition against Officer Dougherty from communicating or contacting Mr. Semerling. The Crown also seeks an additional term requiring Officer Dougherty to complete 200 hours of community service. Given that the offence of assault causing bodily harm is a primary designated offence, the Crown is requesting a DNA order. The Crown argues that a suspended sentence is necessary to satisfy the principles of denunciation and deterrence, which are key sentencing principles.

[6] The Defence contends that a conditional discharge with two years of probation and 160 community services hours is appropriate under the circumstances of this case, considering Officer Dougherty’s lack of a criminal record, the support of family, friends, and colleagues, a history of exemplary work and professionalism, participation in counselling services and community service, the collateral consequences of Police Services Act disciplinary proceedings, and a pending civil lawsuit.

Officer Dougherty’s Circumstances

[7] Officer Dougherty is 50 years old and was born and raised in Thunder Bay. He had a perfectly normal upbringing without any domestic violence or substance abuse in the home. He does not consume alcohol. While growing up, he was taught to respect rules and discipline.

[8] As a youth, Officer Dougherty played various sports, including wrestling, baseball, and basketball, and began training in martial arts at 12 years old.

[9] After completing high school, Officer Dougherty immediately went to work. He found employment in the automotive sector, installing stereos and electronics. In 2001, he joined Bell Canada as a copper and fibre optic installation linesman which necessitated travel to distant northern communities, resulting in time away from his family.

[10] He met his spouse when he was 27 and married her when he was 32. They have two children, aged 29 and 27.

[11] Officer Dougherty has a close and loving relationship with his children. He engages in pro-social activities with them, including fishing and fixing cars.

[12] Officer Dougherty always wanted to be a police officer. He could not realize that dream when he was younger, taking care of his family. However, he took that leap later in life, quit his job at Bell Canada and enrolled as a Special Officer in 2017. In 2019, at 45, he attended the Ontario Police College and left his family for three months. He became a sworn member of the Thunder Bay Police Service, working mainly in primary response as a uniform patrol officer. He was briefly seconded to the Intelligence Unit for six months.

[13] Since Officer Dougherty was charged, he was reassigned to the Missing Persons Unit and is no longer a uniform patrol officer.

[14] During his time in law enforcement, Officer Dougherty has acted as a coach officer. The Defence Compendium features multiple letters that showcase his respectability and competence in this role. This position posed challenges and required physical endurance, primarily because of the age gap between Officer Dougherty and the police trainees. Nevertheless, his patience and extensive experience helped him thrive in this capacity, as evidenced by the reference letters.

Officer Dougherty’s Allocution

[15] Following the submissions, Officer Dougherty read from a prepared statement expressing his remorse. He acknowledged that he lost his patience during his interaction with Mr. Semerling. Officer Dougherty showed insight into his actions. He recognized that he let Mr. Semerling down by causing harm when he should have offered help. He feels apologetic and embarrassed about his behaviour, stating the following:

“It pained me to watch Mr. Semerling struggle to testify in court, it pained me to see him seeming to have a seizure in my vehicle once he was apprehended and it filled me with revulsion to see how I spoke to him on my body worn camera after I apprehended him.”

[16] After he apologized directly to Mr. Semerling, Officer Dougherty apologized to the public for losing confidence in the police, which was caused by his actions.

The Relevant Sentencing Principles

[17] Imposing a sentence is a highly individualized exercise tailored to the gravity of the offence, the offender's blameworthiness, and the harm caused by the crime. (See: R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773, at para. 43.) The goal is always to impose fair, fit, and principled sanctions. (See: R. v. Parranto, 2021 SCC 46, at para. 10.)

[18] The purpose of sentencing is set out in section 718 of the Code. It states that “[t]he fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.”

[19] Section 718 sets out the sentencing objectives, namely denunciation, specific and general deterrence, offender rehabilitation, the requirement that offenders be separated from society where necessary, the reparation for victims, and the promotion of a sense of responsibility in offenders.

[20] The fundamental principle of sentencing is set out in s. 718.1, which provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The “gravity of the offence” refers to the seriousness of the offence. The “degree of responsibility of the offender” refers to the offender’s role or culpability in the offence. (See: R. v. Hamilton, 186 C.C.C. (3d) 129 (Ont. C.A.) at paras. 90-91.)

[21] We operate in a common law system. While every case is different, courts should strive to impose sentences like sentences imposed on similar offenders in similar cases. This reflects the principle of parity and the role of stare decisis. It is ultimately a question of fairness that requires that the sentence imposed falls within an acceptable range of sentences for similar offences committed by similar offenders. Differences in sentences should be capable of rational explanation (See: Ruby on Sentencing, Ninth Edition, para. 2.29 and R. v. Klemenz, [2015] S.J. No. 391 (Sask. C.A.) at para. 46).

[22] In arriving at a fit sentence, the Court must have respect for the principles of restraint embodied in ss. 718.2 (c) to (e).

[23] The Court’s goal is to arrive at a fit sentence. If the sentence reflects the statutory and common law principles, the Court has a certain amount of discretion in balancing and applying the sentencing objectives in s. 718.1 (See: Ruby on Sentencing, Ninth Edition, paras. 1.61 to 1.63). The Court must regard the factors set out in the Code, the nature of the offence, and the offender's circumstances (Ruby on Sentencing, Ninth Edition, para. 2.8).

[24] In this case, the principle of restraint carries some weight but must be balanced with the primary need for general deterrence and denunciation. The principle of restraint is codified in section 718.2(d) and is well established in the case law.

[25] I am aware of the principles of specific deterrence and rehabilitation. However, considering these facts, I believe the message to Officer Dougherty has been received loudly and clearly, and his rehabilitation is still in progress.

The Breach of Trust and Police Violence

[26] Section 718.2 of the Code provides:

A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
shall be deemed to be aggravating circumstances; … .

[27] Any criminal offences committed by police officers are particularly significant and are treated severely because the police are in a position of trust, and the administration of justice relies on fidelity, restraint, and competence.

[28] The Crown filed a casebook with seven decisions that outline principles that apply to sentencing proceedings involving police officers who have committed criminal offences in the line of duty.

[29] The trial and appellant decisions in R. v. Theriault, 2021 ONCA 517 and [2020] O.J. No. 4797 were contained. The facts in that case were far more aggravating. An off-duty police officer and his brother beat a vulnerable racialized youth with a metal pipe. The conviction for assault and sentence of nine months in prison was upheld.

[30] Justice Di Luca, in the trial judgment, discussed the implicit breach of trust in cases of police violence. He wrote at paras. 45 and 46 the following:

45 The courts have recognized that when sentencing police officers convicted of committing crimes, the sentence must reflect the special position that police officers occupy in society; see R. v. Doering, 2020 ONSC 5618 at para. 23 and R. v. Cook, 2010 ONSC 5016, at para. 29. As my colleague Pomerance J. notes in Doering, supra, at para. 25:
It has been recognized that crimes committed by police officers represent a breach of the public trust. It is for this reason that police are "held to a higher standard than would be expected of ordinary citizens", and "the principles of denunciation and general deterrence become magnified" in the sentencing of police: see R. v. Forcillo, 2018 ONCA 402, 361 C.C.C. (3d) 161 at paras. 198-199; R. v. Ferguson, 2008 SCC 6, [2008] S.C.R. 96 at para. 28.

[31] In terms of discussing the need for deterrence and public denunciation of police committing crimes, he said the following at paras. 48 and 49:

48 The criminal law and sentences imposed by due process under the criminal law reflect a shared set of communal values; see R. v. M. (C.A.), supra, at para. 81. Denunciation is the process by which these values are communicated to the public broadly and to offenders specifically. When a court imposes a sentence, it denounces the offender's conduct and sends the message that a violation of shared communal values will not be tolerated.

49 Denunciation is closely related to the concept of deterrence. By imposing a denunciatory sentence, the court also seeks to deter the specific offender and other like-minded individuals from committing similar offences. While the need for denunciation and deterrence varies depending on the type of offence, it is often heightened in cases where the type of offence under consideration is an offence generally committed by otherwise law-abiding people. It is those people who are most likely deterred by stiff sentences; see R. v. Lacasse, supra, at para. 73.

[32] In R. v. Theriault, Chief Justice Tulloch stated, on behalf of the panel, at para. 206:

It is well recognized that police are "held to a higher standard than would be expected of ordinary citizens" because they are charged with enormous responsibilities and granted a great deal of trust and power: R. v. Forcillo, 2018 ONCA 402, 361 C.C.C. (3d) 161, at paras. 198-99, leave to appeal refused, [2018] S.C.C.A. No. 258. Police officers are duty bound to serve and protect the community. They are also duty bound to uphold the law. When the conduct of a police officer runs contrary to either of these duties, the legitimacy of the rule of law - a postulate of our constitutional structure - rests on fragile ground. This court has emphasized that the principles of denunciation and general deterrence become magnified in these circumstances: Forcillo, at para. 199.

[33] There is no applicable range of sentence that can be discerned from the caselaw. Each case turns on its facts. The focus remains on ensuring that the sentence does not depart from the principle of proportionality. (See: Theriault, CA, paras. 221-224.)

[34] In R. v. Kaushal, 2022 O.J. No. 3946, the Crown sought a suspended sentence, and the Defence sought a conditional discharge. A police officer pleaded guilty to two counts of assault simpliciter. The Peel officer, while arresting a person, stood him up facing a wall to handcuff him and forcefully shoved his back twice with his right forearm, causing a minor bump to his forehead. Justice Durno outlined other factors to consider when deciding whether a conditional discharge is appropriate. Some of those factors were at play in this case, such as no false notes were prepared, no effort to conceal the conduct, no premeditation, no gratuitous humiliation to the victim, the conduct was not prolonged, no racial motivation and no weapon was used. But, unlike in our case, there was no bodily harm inflicted. However, in the end, Justice Durno suspended the passing of sentence on both counts and found that the wrong message by way of deterrence would be sent if a discharge was imposed.

[35] In R. v. Beric, an Ontario Court of Justice unreported decision (January 16, 2024), my colleague Justice J. O’Brien declined to impose a conditional discharge after findings of guilt for assault with a weapon and assault simpliciter on an Ottawa police officer for his improper use of a baton while restraining a vulnerable individual who was suffering from mental health issues. In that case, the officer pushed the victim, who was in crisis, to the ground. Before he struck him several times in the head with his baton, blood was seen coming from his head. The officer stood on the victim’s head and neck, which interfered with the victim’s breathing. The Crown sought a conditional sentence. Ultimately, Her Honour imposed a suspended sentence and placed the officer on 30 months of probation. After reviewing the aggravating and mitigating factors, she found that a discharge would be contrary to the public interest and would not meet the need for general deterrence.

[36] In R. v. Mahmodian, 2021 O.J. No. 494, Justice Kozloff imposed a sentence of 30 days on a police officer who pleaded guilty to assault. The facts of that case are very different as they involve gratuitous violence on a restrained prisoner. While the victim was lying prone on the ground, the officer deployed a taser on him. Once he was handcuffed and lying face down, the officer kicked the victim in the torso. Justice Kozloff found that the attempt by the officer to cover up his conduct, giving a false account in his memo book and use of force report, was significantly aggravating to make a non-custodial sentence unfitting. The sentence was held up on appeal. (See: R. v. Mahmodian, [2021] O.J. No. 6391.)

[37] The Crown argues that this lack of aggravating factor in our case makes a suspended sentence appropriate.

[38] In R. v. Holmes, 2019 O.J. No. 4095, after a trial, Justice Chapman imposed a suspended sentence for assault causing bodily harm on a police officer who pushed a cyclist off his bicycle during an arrest for running a red light, which resulted in a broken shoulder and injuries to the cyclist’s face. The Defence sought a conditional discharge. Justice Chapman found that there was a need to emphasize the principles of deterrence and denunciation in sentencing a police officer who assaulted a detainee.

[39] The key similarity between that case and this case was the context in which the attempted arrest occurred. The officer got frustrated with the cyclist’s non-compliance, and instead of considering alternative approaches, he departed from his training and let his impatience and aggression take over. Her Honour’s following comments at para. 16 are equally applicable to Officer Dougherty:

16 Mr. Santiago was in a vulnerable position while straddling his bike in light clothing with one of his hands already cuffed. Not only did he not represent any threat to the officer in this position but it was clear that he would have great difficulty breaking a fall. The push was done with considerable force and an injury was clearly foreseeable. The victim impact is very significant. The assault was motivated by impatience and aggression in circumstances where the latter was in no way justified. This was not a gun call or a high risk take down but rather an arrest for a minor POA offence. There was no need for violence and the situation escalated much too rapidly due primarily to the approach taken to the situation by Officer Holmes. The need for general deterrence and denunciation are to be in the foreground of any sentence imposed.

[40] In R. v. Baxter, 2018 O.J. No. 4634, Justice ODonnell imposed a conditional discharge and 200 hours of community service after finding the officer guilty after a trial. In that case, the officer grounded the victim, in which circumstances were not justified, and left a “nasty gash” on his face. It is important to note that the victim was a much more provocative and aggressive complainant than in our case. The Court accepted the officer’s actions were out of character. Justice ODonnell noted"Society rightfully expects trained and experienced police officers like Sergeant Baxter to control their frustrations, but when they fail to do so, society must recognize that police officers are human rather than superhuman." The Court held that the sentence satisfied the principles of deterrence, denunciation, rehabilitation, reparations, and a sense of responsibility in the offender. It was noted that s. 730 of the Code provides a discharge for this offence if it is in an accused’s interest and not contrary to the public interest. In granting an 18-month conditional discharge with probation, Justice ODonnell noted that just as a non-custodial sentence might very well have deterrent value, so may a discharge.

[41] Officer Dougherty’s moral culpability is relatively high. Police officers are trained to withstand provocation and, as professionals, are expected to tolerate danger and abuse. (See: R. v. Thomas, 2021 ONSC 6653, at para. 51.) They are trained to respond appropriately to volatile encounters. (See: R. v. Theriault, at para. 207 (C.A.) and R. v. Kaushal, at para. 83.)

[42] Typically, police should receive harsher sentences than regular individuals because of their privileged societal role and the trust that the community places in them. (R. v. Schertzer, 2015 ONCA 259, at para. 133.)

[43] When police engage in assaultive behaviour against arrestees, it breaches the public’s confidence and trust. This degrades the relationship between the public and the police, causing the public to lose faith in the administration of justice. Suppose the public perceives that the police are more likely to abuse their authority. In that case, the public may become more aggressive and less cooperative during interactions, putting the public in danger.

[44] The Crown submitted that a sentence intended to deter and denounce is essential to convey a clear message to, and impact similarly situated police officers, such as Officer Dougherty—who has no prior criminal record, no disciplinary history, and the support of family and friends. If general deterrence is to have any effect, one would think that this population group would be the most affected.

Other Collateral Consequences

[45] When considering the collateral consequences in sentencing, in R. v. Nicholls, 2024 O.J. No. 1532, Justice Olver stated the following in para. 45:

While I accept the Crown's submission that collateral factors should be given less weight (i.e., diminished mitigation) in the sentencing process (see: R. v. Suter, 2018 SCC 34, at paras. 45-49, 56; Mahmodian, supra at para. 13; Doering, supra at paras. 63-64), I also accept Defence counsel's submission that many courts have recognized collateral consequences in the sentencing process that are unique to police officers who have been found guilty of criminal conduct (see: R. v. Griffin, [1975] PEIJ No. 64, at paras. 9-10; Mathieu, supra; R. v. Holmes, [2019] O.J. No. 4095, at para. 14; R. u. Gabruch, [2016] A.J. No. 84; R. v. Cardinal, [2005] O.J. No. 3678, at paras. 32-33, 37; Darnley, supra; R. v. Fraser, [2020] NSJ No. 266).)

[46] In Officer Dougherty’s case, I find the relevant collateral consequences:

• (i) He has lost several friends over the stigma of the charge and finding.
• (ii) His wife has faced some ostracism at work.
• (iii) His children are confused and upset over the incident, which is entirely at odds with how they know their father.
• (iv) Given the widespread media exposure this has received in Thunder Bay, he has had to contend with the impact on his reputation in the community. This is particularly acute given the highly polarized environment between the police and the public, in Thunder Bay.
• (v) The outcome of this case will impact the pending Police Services Act proceedings, which will affect his employment with the Thunder Bay Police Service.
• (vi) He was served a $1.5 million lawsuit the day before submissions.

[47] I am acutely aware of the impact a criminal record could have on a police officer’s career path. The anxiety of that uncertainty weighs heavily on Officer Dougherty, his family, friends, and colleagues.

[48] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate.

Aggravating Factors

[49] I find the following aggravating factors to be relevant to my consideration of a fit sentence:

• (i) This was a breach of public trust as Officer Dougherty was in the execution of his duties to serve and protect all individuals, especially a person who was in his charge and particularly vulnerable. Mr. Semerling had suffered a mental health crisis and had been drinking. Moreover, he was fundamentally defenceless when struck four times.
• (ii) This was not a true crime arrest. When the police arrest individuals who have a propensity for violence and have committed a criminal offence, the assessment of the use of force is different. This was an M.H.A. apprehension, which can be unpredictable and volatile but also requires a greater degree of restraint and effective communication from the police.
• (iii) This was a violent crime involving excessive force that caused significant injury to Mr. Semerling. Following the assault, he struggled to concentrate due to the concussion he sustained.
• (iv) There was an obvious power imbalance involving Officer Dougherty and Mr. Semerling.
• (v) The impact of this assault on Mr. Semerling is profound and long-lasting.
• (vi) Officer Dougherty failed to document his use of force, advise his superior officer what had occurred, and did not notify medical staff that Mr. Semerling may need medical assistance.
• (vii) Officer Dougherty failed to activate his body-worn camera before interacting with Mr. Semerling.

[50] Regarding the last two factors, while I was fully satisfied that Officer Dougherty did not intend to cover up his actions by failing to report the incident, accurately documenting his behaviour in his police report, or not activating his body-worn camera, nonetheless, it was still troubling that he never candidly admitted what occurred on Oliver Road.

[51] It was concerning that both his notes and police report were lacking. Without Officer Dougherty’s in-car camera video, which recorded his interaction with Mr. Semerling—including Officer Dougherty’s admission that he struck Mr. Semerling four times and clarification that Mr. Semerling did not cause his injuries by banging his head on the safety partition—Officer Dougherty might have evaded accountability.

Mitigating Factors

[52] I find the following mitigating factors to be relevant to my consideration of a fit sentence:

• (i) Officer Dougherty is a first-time offender.
• (ii) He has no prior disciplinary history.
• (iii) He has an otherwise excellent record and enjoys the support of superior officers and colleagues.
• (iv) He has supported and given back to his community by working at a soup kitchen.
• (v) He has engaged with clinical and forensic/correctional psychologist Dr. Paul Johnston.
• (vi) He has significant community support, as evidenced by the impressive character references submitted on his behalf.

[53] I have reviewed 21-character references and, during submissions, listened carefully to Counsel quoting various portions of those letters. They are indeed impressive. However, I am struck by the overlapping descriptions of Officer Dougherty’s character, such as his “professionalism,” “kindness,” “caring,” "empathy" "conscientiousness" "discipline" and "respect" toward others in the community. This starkly contrasts how he acted towards Mr. Semerling on November 8, 2022.

[54] Sgt. Arnone’s letter stands out. He wrote that Officer Dougherty “was attentive to both the public and his co-workers’….and respectful to everyone he came in contact with…I have observed him interact with the public, treating them with respect and dignity, regardless of them being witnesses, complainants, accused persons, or victims of crime.”

[55] Another letter written by Sgt. Dubuc details a contrasting image of Officer Dougherty as well. He wrote, “Officer Dougherty has bone fide interest in conducting himself professionally and properly in accordance with the law and police procedures and I would like to state with certainty, that he is not an aggressive or reckless officer who utilizes force inappropriately.”

[56] Officer Elvish wrote, “Ryan has the ability to remain calm, even during the most critical situations…. His ability to remain calm and composed in high-pressure situation (sic) is a testament to his training and natural aptitude of law enforcement…He has a keen sense of justice and fairness, ensuring that every individual he encounters gets treated with respect and dignity.”

[57] These comments and opinions are challenging to reconcile with the facts of this case, as I have found them. I can only conclude that Officer Dougherty's behaviour in this matter represented a complete aberration from the character that everyone has attested to.

Neutral Factors

[58] Officer Dougherty was found guilty after a trial. It is well established that a plea of guilty counts as a mitigating factor in sentencing, but neither a decision to plead not guilty nor how an accused person presents his or her defence is to be treated as an aggravating factor. (See: R. v. Kozy, 58 C.C.C. (3d) 500 (Ont. C.A.) at 506, and R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 at para. 16.) While Mr. Semerling was emotional during his testimony regarding the incident and his history of PTSD, he was not attacked, and Counsel avoided undermining his dignity. The cross-examination focused on Mr. Semerling’s memory, which I found unreliable. In the end, however, I found Officer Dougherty guilty based on his evidence. The admissions that were made streamlined this trial. I consider this a neutral factor.

The Appropriate Sentence

[59] In this case, the parties agree that the sentences that apply to Officer Dougherty’s offence and circumstances range from a conditional discharge to a suspended sentence.

[60] Section 730(1) of the Code sets out the statutory test for the Court to apply in deciding whether to grant a conditional discharge. The test is twofold. The Court must be satisfied that it is in the best interests of Officer Dougherty and that it is not contrary to the public interest that Officer Dougherty receives a discharge.

[61] I conclude that for Officer Dougherty, as is the case for virtually any person before the Court is sentenced, it is in his best interests to be granted a discharge. However, specific deterrence must not be a relevant consideration nor rehabilitation. Usually, the offender is a person of good character without a previous conviction, and it is not necessary to enter a conviction to deter them from committing future offences or rehabilitate them. (See: R. v. Kaushal, at para. 144.)

[62] The vexing and the most challenging part of the test relates to whether it is contrary to the public interest that Officer Dougherty receive a discharge. A discharge is not restricted to trivial matters. They can be granted where an offender has acted entirely out of character or where a criminal record tends to interfere with employment. They are available in cases which involve a breach of trust, whether the offender is a civilian or a police officer. The need for general deterrence must be given due weight but does not preclude a discharge. (See: Kaushal, at paras. 143-149.) It is not confined to any class of offences except those specifically proscribed by the Code. (See: R. v. Sanchez-Pino, [1973] 2 O.R. 314.)

[63] In deciding whether a conditional discharge is appropriate in this matter, I am also guided by Justice Hill's pronouncement in R. v. Pera, 2016 ONSC 2800, setting out the law relating to discharges. His Honour wrote as follows in para. 95:

Our sentencing jurisprudence has developed certain governing principles relating to discharge dispositions including the following:
(1) A conditional discharge is a real sentencing disposition, whereby an offender is subject to probation conditions to earn a full discharge… It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing an offence.
(2) A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: …
(3) While discharges are not restricted to trivial matters…, and therefore over-emphasis on the nature of the offence as not warranting a conditional discharge must be avoided…, in the case of violence resulting in injury, the requirement of general deterrence generally militates against the grant of a discharge notwithstanding considerations personal to the accused: …
(4) The sentencing court may take into account any particular hardship a criminal conviction and criminal record may have insofar as it relates to an offender's travel and employment: …

[64] This was not a situation in which the assault occurred after Mr. Semerling had been taken into custody or was otherwise under the secure control of the police. Instead, it was a dynamic circumstance that escalated quickly. Following the initial contact, Officer Dougherty perceived Mr. Semerling's actions as resistance and a refusal to be apprehended. He acted within the scope of his lawful duties when he approached and engaged Mr. Semerling, as indicated in my reasons; however, once Mr. Semerling was on the ground and defenceless, Officer Dougherty’s use of force was unnecessary and excessive. Similar to Justice Chapman's remarks in the Holmes decision, which are relevant to this case, this was not a high-risk takedown or a gun-related incident. Instead, it was a re-apprehension under the M.H.A. of a vulnerable individual.

[65] Several other factors, sometimes referred to as a lack of aggravating factors, exist. These assist me in determining whether a discharge would be contrary to the public interest. For example, the assault was not racially motivated, no weapon was used, and there was no premeditation. I found that Officer Dougherty was frustrated that Mr. Semerling was allowed to leave the Hospital after being brought there by the police. However, his frustration was not directed at Mr. Semerling personally but rather at the situation. There was no unnecessary or prolonged humiliation aimed at Mr. Semerling. Nonetheless, there was bodily harm inflicted by four closed-fist strikes to Mr. Semerling's face. The impact on Mr. Semerling is significant and continuing.

[66] Specific deterrence is not a concern in this case. Officer Dougherty has been significantly deterred by the public five-day trial and being found guilty.

[67] The more pressing concern is general deterrence and public denouncement of law-abiding, like-minded, similarly situated police officers. This demographic is likely to be swayed by sentencing jurisprudence.

[68] This case is much closer to custodial territory, whether a traditional imprisonment or a conditional sentence, than to a conditional discharge. The number of strikes and the nature of Mr. Semerling's injuries take this case entirely out of the realm of a conditional discharge and, therefore, would be contrary to the public interest.

[69] Accordingly, I find the appropriate sentence in this case to be suspended with one-year probation on statutory terms. Officer Dougherty shall report to probation within seven days and thereafter as directed. He shall complete 100 hours of community service. Officer Dougherty shall not have direct or indirect contact with Mr Semerling except through legal counsel. He shall not attend within 100 metres of any place where he knows John Semerling to live, work, go to school, frequent or any place he knows John Semerling to be.

[70] The offence is a primary designated offence. Officer Dougherty shall provide a sample of his DNA for inclusion in the DNA databank within 60 days from today.

[71] I am imposing the victim fine surcharge. Officer Dougherty will have one year to pay it.

Released: March 10, 2025
Signed: Justice P.T. O’Marra