Court File and Parties
COURT FILE NO.: CR837/10
DATE: 20130104
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen
AND:
John Schertzer, Steven Correia, Ned Nebojsa Maodus, Joseph Miched and Raymond Pollard
BEFORE: Madam Justice G. Pardu
COUNSEL: John Pearson, M. Rupic, J. Barrett and S. Reid, Counsel for the Crown Alan Gold and Melanie Webb, Counsel for John Schertzer Harry G. Black and Joanne Mulcahy, Counsel for Steven Correia Patrick Ducharme, Counsel for Ned Maodus P. Brauti, Counsel for Joseph Miched Earl J. Levy, Counsel for Raymond Pollard
REASONS FOR SENTENCE
[1] All five accused have been convicted of attempt to obstruct justice, and three have been convicted of perjury. The Crown seeks penitentiary terms of 4 years for John Schertzer on the ground that he was the senior officer responsible, and 3 years for each of the other 4 accused.
[2] The Defence submits that a non-custodial sentence would be sufficient to satisfy the need for denunciation and deterrence in all the circumstances of this case.
[3] I begin with an analysis of the offences in question. The indictment alleges in paragraph 3 that the 5 accused "did wilfully attempt to obstruct, pervert or defeat the course of justice, by practicing deception, including by making a false or misleading account of events in their memo books, and/or by lying to the court in their testimony, in order to conceal that a search done on February 18, 1998 at the residence of the Pang family at 2466 Eglinton Avenue East, Apartment 1404, Toronto was done without a search warrant."
[4] The perjury counts, 4, 5 and 6 allege that each of Pollard, Maodus and Correia did "swear falsely, and with intent to mislead the court, that on February 18, 1998 he did not enter the premises prior to the arrival of a search warrant."
[5] It is common ground that the guilty verdict means that the jury concluded that search of the Pang apartment was undertaken before the warrant was obtained and that the jury concluded that the memo book notes by each of the accused stating that the search was executed after the warrant was obtained were false.
[6] The memo book notes made by each of the officers are as follows:
Schertzer
…rest of team to #1404 to secure premises-until S/W arrived-D/C Miched to obtain S/W. o/s apartment secured,-see S/W package for details… 2228 Info from 88 [Miched] s/w obtained….2245 S/W executed, see S/W notes….2330 exit premises
Correia
…detailed to attend at apartment #1404 await as 1788 [Miched] obtains telewarrant for address….2226 info S/W signed….2245 PC Miched o/s S/W executed
Maodus
Detailed to standby & secure apt awaiting S/W, Apt 1404… 22:26 I/R from 88 S/W obtained….22:45 O/S with S/W-S/w executed into apt with key…23:30 exit apt
Miched
Telewarrant obtained-to 2466 Eglinton Ave. E apt 1404, execute S/W
Pollard
..await S/W by 88[Miched]… 10:26 info S/W endorsed….8:45 exit S/W-see S/W notes…
[7] In his memo book notes, Pollard had the officers exiting the premises at 8:45 and at 11:30. He testified that this was a mistake caused by his discomfort with the 24 hour clock system. At trial he said the exit time at 11:30 was correct and that they entered the premises at 10:45.
[8] The false testimony at Pang's preliminary inquiry which also underlies the attempt to obstruct justice count is as follows:
Correia
Q. You were detailed to assist with the search warrant, right?
A. Yes.
Q. Did you stay at this location until the search warrant arrived?
A. Yes.
Q. Where did you stay?
A. I stayed out in the hallway with the other officers.
Q. Do you recall, sir who was there with you?
A. No, I don’t remember.
Q. Do you recall whether anybody made any attempt at that time while you were waiting to see if there was any other occupants of the apartment?
A. I don’t –no, I don’t believe so. I didn't.
Maodus
Q. Now, with respect to your involvement with apartment 1404, am I to understand it, sir, that you sort of go from the scene of the arrest to 2466 Eglinton and sort of take up a position outside this apartment door?
A. That's correct.
Q. And presumably no attempt is made by you or any other officer there to enter that apartment prior to the warrant arriving?
A. No.
Pollard
Q. Now, when you attend to execute the warrant-well, do you recall, first of all what time you attended to execute the warrant?
A. Well, what happened was, very shortly after the arrest the itself, we became aware of the specific apartment for Mr. Pang, and myself and a couple of other officers went up and secured the hallway to make sure that nobody had executed or entered that particular apartment until the search warrant. So it was very shortly after the time 6:50 at the arrest and the time I read their rights and turned over Mr. Chui to Detective Constable Miched. I'd say within five or ten minutes.
Q. And is it your evidence, then that you stay outside this apartment until the officer arrives with a warrant?
A. Yes, and I believe that was at-I believe approximately 10:45.
Q. So you don't enter the apartment?
A. No.
Q. Do you speak to anybody in the apartment? Are you aware of any other occupants of the apartment while you're waiting there?
A. Possibly a female, to my recollection, may have been in the premises.
Q. And how is it you came to know that, sir?
A. Once we entered the premise.
Q. So you'd know that when you go in with the warrant?
A. I believe so. I don't have a notation of that, but my recollection is there may have been a female in the apartment.
Q. So your recollection is that you wait outside, the warrant arrives, you go in, and you're aware of this person being in the apartment?
A. Right.
Q. It's not a situation where you have any contact with this person in the apartment prior to the warrant arriving?
A. No.
Q. And to the best of your knowledge, sir, any of the other officers that were with you waiting for the warrant, do they enter that apartment prior to the warrant coming?
A. Not that I'm aware of.
Q. Can you just tell me who was there with you?
A. For certain, I know Constable Maodus, Detective Schertzer and myself, and I believe those other two officers, and including Detective Constable Miched with the warrants.
Q. Are you aware of who had the keys to the apartment when you were waiting outside of 2466 Eglinton?
A. It was certainly not myself and it was, to my recollection, either Detective Schertzer or Detective Constable Maodus.
Q. So nobody banged on that door and wanted to know earlier whether anyone was in there?
A. No.
Q. There was no attempt made to gain entry?
A. No.
Miched
Q. And so were you also the person, sir that was the-and you'll have to help me because I'm not clear on this-was the recipient of the search warrant, if you like? Did you have it in your possession at the time that it was executed?
A. Yes.
Q. So this is a tele-warrant as I understand it?
A. Yes, it was.
Q. At the time that you have this warrant, sir, and you attend Mr. Pang's address, you were assisted in that search by other officers, correct?
A. Correct.
[9] Miched was acquitted of perjury because he did not tell a falsehood in the precise manner alleged in the perjury count, but his testimony at the preliminary inquiry was deceptive in that it suggests that the search was conducted after the warrant was obtained, and is therefore an additional element of deception underlying the conviction for attempt to obstruct justice.
[10] The count of attempting to obstruct justice by practicing deception is not limited to the memo book entries and the testimony, but includes those matters. The Crown submits that there were other acts of deception which form part of the actions constituting the offence, and I accordingly turn to these other acts to assess whether these have also been proven beyond a reasonable doubt.
[11] Miched submitted documents to a Justice of the Peace, beginning at 10:00 p.m. The Justice of the Peace sent him a transmission authorizing the search of the Pang apartment ending at 10:32 p.m. The documents sent by Miched included two affidavits in which he said that officers were standing by at 2466 Eglinton Avenue East awaiting the obtaining of a telewarrant. In order for this to constitute a false document by Miched, who was at the police station, it would have to be proven that he knew when he executed the affidavit that the other officers had entered the apartment. I am unable to draw this conclusion beyond a reasonable doubt. While there was some evidence of cell phone calls back and forth, and that Schertzer was pressuring Miched to hurry up and get the warrant, I am not certain that Miched knew the others had entered the apartment when he swore the two informations to obtain search warrants or submitted them to the Justice of the Peace.
[12] Correia swore an information to obtain a search warrant for the safety deposit box of an occupant of the apartment. In that document he referred to "the time that the search warrant was executed" in relation to the Pang apartment. Given that the search was conducted before the warrant was obtained, I am satisfied beyond a reasonable doubt that this was deceptive. Had he disclosed the warrantless search, it is unlikely that a further warrant would have been granted based on information gleaned from the warrantless search. Correia was an experienced drug squad officer, and I conclude that this statement was a deliberate continuation of the attempt to obstruct justice that began with the false memo book notes.
[13] Similarly, the Supplementary Record of Arrest signed by Miched and Schertzer records, "a CDSA search warrant was executed on the accused Pang's residence and an additional clear plastic baggie containing heroin was seized from the accused room." Both Miched and Schertzer would have known that this document would form part of the disclosure package, and would tend to conceal their warrantless search before the warrant was obtained. Both would have known that this would conceal information from defence counsel which could form a basis to challenge admission into evidence of the finding of the one ounce of heroin in the apartment. I infer that this attempt at concealment was deliberate and for the purpose of attempting to obstruct justice. This document was likely prepared at the same time as their memo book notes.
[14] The Crown agrees that there is no evidence that the accused signed the surveillance notes or surveillance intelligence report prepared by Donison. There is no evidence as to which of the accused provided particular information to Donison about the activities at the apartment. Donison was not at the apartment, but went to the station with Pang after he was arrested.
[15] I now turn to a consideration of the principles which must govern my sentencing decision.
[16] Section 718.1 of the Criminal Code expresses the fundamental principle that "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
[17] Other sentencing principles provided for in s. 718.2 provide,
(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.
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,…
[18] There is no dispute that the accused all breached the trust confided in them as police officers by committing the offences of which they have been convicted. As observed by the Crown, that "Police have a public duty to uphold the law, and the commission of the offence of obstruction of justice or perjury by a police officer is an extremely serious breach of trust which risks miscarriages of justice, and which undermines the integrity of the administration of justice." In R. v. Feeney et al (2008), 2008 ONCA 756, 238 C.C.C. (3d) 49 (Ont. C.A.) the court dealt with the issue of the sentence appropriate for police officers who had assaulted a prisoner, and approved the views expressed in R. v. Cusack (1978), 1978 CanLII 2283 (NS CA), 41 C.C.C. (2d) 289 (N.S.C.A.),
In my opinion, the paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who are given special authority by our law to deal with individual members of society, and to deter such persons from acting in breach of their trust. All citizens must have confidence that police officers who are invested with substantial rights of interference with individual liberties exercise these rights with a scrupulous propriety, and that any failure to so act will result not only in dismissal from the position of trust but also in the imposition of substantial punishment.
The commission of offences by police officers has been considered on numerous occasions by the Courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime, because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration.
[19] Offences like those committed by the accused undermine public confidence in police forces generally, and court proceedings which depend on their evidence.
[20] There is no doubt that general deterrence and denunciation must be given substantial weight in determining the sentence to be imposed in this case.
[21] There are a number of aggravating features of the offences. It is apparent that the accused must have acted together to present a unified version of the timing of the search. The deception continued to testimony at the preliminary inquiry for 4 of the accused. Breaches of trust by police officers in their dealings with drug dealers whose testimony is suspect can be difficult to prove; this is a factor that increases the concern for denunciation and deterrence.
[22] On the other hand, sentences imposed in analogous circumstances have ranged from suspended sentence and probation to fines, to conditional discharges, incarceration served in the community to incarceration for as long as 4.5 years.
[23] The defence submit that there are mitigating circumstances here which suggest that the sentence should fall in the less severe end of the range.
[24] The officers had nothing to gain personally from entering the apartment without the warrant, save for perhaps shortening their work day by a couple of hours. They sometimes worked 12, 14 or 16 hour days. There was nothing abusive about the manner in which the search was conducted, and the occupants were well treated. There is no doubt that they had grounds to obtain a warrant. Their lawful investigative work resulted in the arrest of Ho Bing Pang for trafficking in heroin. He was caught red handed in the street with two ounces of heroin after going into the apartment to get it. The deception and false testimony were not committed to cover up collateral misconduct on their part, such as assault, theft, extortion, planting of drugs or anything similar. They short circuited the constitutional rights of the occupants by going in without a warrant. Had they been truthful in their memo book notes, and at the preliminary inquiry, the likely result would have been that Pang would have been convicted of trafficking in the initial two ounces of heroin, but the one ounce found in his apartment would have likely been excluded from evidence.
[25] I do not accept the argument that the fact that the accused were engaged in investigation of drug traffickers is a mitigating circumstance. "Noble cause corruption"- has the potential to seriously undermine the repute of the administration of justice. The accused have been convicted of serious offences related to their investigation of serious charges, trafficking in heroin.
[26] I also accept that incarceration would be exceptionally difficult for each of these accused because their work as police officers has likely resulted in the incarceration of hundreds of drug dealers.
[27] The Crown withdrew all charges against Pang, including those related to the 2 ounces of heroin seized on the street. In making this decision the Crown was undoubtedly influenced by the large number of charges against these accused including unrelated matters. The accused have been acquitted of most of the charges against them. The most that I can conclude is that their conduct in the Pang matter was a factor in the Crown's decision to withdraw the charges against Pang.
[28] All agree that delay which does not amount to a deprivation of the right to trial within a reasonable time can be a mitigating factor. (See R. v. Bosley, 1992 CanLII 2838 (ON CA), [1992] O.J. No. 2656 (C.A.) ) To say as in Bosley that there has been "delay which causes prolonged uncertainty" is an understatement in this case. The accused were arrested on January 7, 2004. They had been in the cross-hairs of the investigators since 1998. This trial began with a 14 count indictment targeting the accuseds' conduct in 5 separate drug investigations, with a further charge that they were parties to an "overarching conspiracy to attempt to obstruct justice." The complexity and scope of the indictment is the reason for the length and complexity of these proceedings. The accused have been acquitted on all counts save those related to the Pang investigation. The impact of the prolonged proceedings on their lives has been catastrophic, and I will detail this when I review the individual circumstances of each accused.
[29] The delay is all the more significant when accompanied by ruin and humiliation. This matter has attracted enormous publicity, and rightly so, considering the important public interest in the honesty and integrity of a police force. Some of the comments by others reported by media have amounted to hyperbolic vilification for conduct well in excess of the scope of the offences for which the accused have ultimately been convicted.
[30] As noted in R. v. Bunn, 2000 SCC 9, at paragraph [23], "ruin and humiliation" that an accused "brings down upon himself and his family, together with the loss of his professional status, could provide sufficient deterrence and denunciation when coupled with a conditional sentence…"
[31] In R. v. M. (D.E.S.) (1993), 1992 CanLII 6009 (BC CA), 80 C.C.C. (3d) 371 (B.C.C.A.) at page 376, the court described the consequences of a conviction for a serious criminal offence,
There is no suggestion that the accused is a danger to anyone so he need not be isolated in order to protect the public. By convicting him, society has already stigmatized him as a person who has committed a serious offence, and has denounced his offence. Quite recently, the Supreme Court of Canada has expressed itself quite strongly on the importance of stigma as a consequence of criminal proceedings. The court has been saying what most lawyers and criminologists have known all along, that a public charge, trial and conviction for a serious offence brands a person for life, constitutes serious punishment, and is an important part of the way society brings offenders to account for their misconduct.
[32] There is no suggestion that any one of these accused is at risk to re-offend. The substantial issue is whether incarceration is necessary to express the community's denunciation of their conduct, and to deter others who would otherwise be inclined to attempt to obstruct justice or commit perjury.
[33] I turn then to an examination of the individual circumstances of each of the accused.
[34] John Schertzer is 54 years old. He lives with his wife and 2 daughters. His wife works full time as a police officer. He has the flexibility of his present employment which enables him to deal with the needs of his children and elderly mother. Policing has been the only career he has ever had. He joined the Toronto Police Service as a cadet two weeks after graduating from high school. His personnel file is replete with commendations, recommendations for special awards, thanks from members of the community, and positive performance reviews. He was a hard working officer, engaged in difficult and hazardous work. In 1998 there was a concern that he and his family might be at risk, as a result of threats from a street gang. Extra security precautions had to be taken at work and for his family at home. He was ultimately diagnosed with Post-Traumatic Stress disorder. He has been prescribed medication for anxiety, depression and distress. His older child was bullied at school because of the notoriety of the charges. His wife has suffered humiliation when for example, investigators went to a vacation spot frequented by her family and suggested that she was not a good mother. An anonymous package suggesting falsely that they had foreign bank accounts spread the humiliation to her family in Malta. His employer required that he attend in person at police headquarters at 8:30 a.m. and 4:30 p.m. for extended periods of time, although he resided in Burlington. It is difficult to understand the rationale for such a pointless exercise. He finally resigned as a police officer in November 2007. His hopes for a career in policing, and for advancement in that career have been shattered. The financial loss has been enormous. He now works in a restaurant business. A dozen employees depend on him for their job.
[35] Steven Correia is 45 years old. He is married to a police officer and they have two young children. He joined the Toronto Police force as a cadet in 1986 and became a constable in 1988. He had always wanted to be a police officer and his work was very important to him. He has been a police officer for 26 years and wants to be able to continue in this work. His counsel submits that anything more than a suspended sentence and probation could result in the loss of his job. He submits that this would be a disproportionate consequence to the misconduct for which he has been convicted. He also joined the police service immediately upon graduating from high school. It is the only career he has ever known. His career has been shattered as a result of the investigation into his conduct and the charges. He has had to report daily at a police station for an extended period of time. He has been prescribed anti-depressants and sleeping pills. He and his family have been socially isolated and shunned. The worry and strain to him, his wife and children caused by the duration of these proceedings has been substantial. He was a hard working police officer, dedicated to his work. A performance appraisal prepared by his unit commander in October 1990 with a view to determining whether he was a suitable candidate for promotion to Sergeant/Detective awarded him a perfect score, indicating that he was performing "at a superior level, consistently exceeding the defined minimum performance standard and requires little or no management direction in meeting defined goals". The evaluation notes that "a superior rating should only be given to an officer performing in an exceptional manner, well beyond satisfactory." There are many commendations and significant awards in his file. He has engaged in a significant amount of unpaid volunteer work. The offences of which he has been convicted are out of character. He still has skills and experience which make him an asset to his community.
[36] Ned Maodus was convicted after the date of the offences before me for unrelated offences. It is conceded that he must be treated as a first offender for the purposes of sentencing.
[37] Ned Maodus is 49 years old. He resides with a common law partner and they have a 2 year old child. He resigned as a police officer in 2008. Until then he was required to report like the others on strict conditions.
[38] Maodus is disabled by significant mental health issues. The Workplace Safety and Insurance Appeals Tribunal has concluded that incidents occurring in the course of his police work between 1990 and 2001 have contributed significantly to Post Traumatic Stress disorder. These include dangerous and violent incidents including dealing with a tanker truck which had struck an overpass, damaged the valves on top, and had a ball of flames coming out of the top, dealing with a young woman with a serious head injury, where the contents of her skull were visible, dealing with dangerous biker gangs, threats from drug trafficking gangs, violent struggles with suspects, and having to deal with child pornography. He has attended for therapy on a regular basis since 2000. He has been profoundly depressed. He has suffered physical injuries as a result of police work on several occasions. He began working with the Toronto Police Service in 1988. The duration of these proceedings has been particularly difficult for him, given the challenges of his illness. His employment file does not contain any incidents of work related misconduct. A career as a police officer is the only one he has ever known or wanted. He has been ridiculed and shunned by former colleagues. He relies upon Workplace Safety compensation payments to meet his living expenses.
[39] Joseph Miched is 54 years old. He is married with adult children, and is grandfather to a 4 year old and a 2 year old. He began his career with the Toronto Police Service when he was 19 years old, in 1978. He has an exemplary personnel record. The only blot is a notation that in 1995 he lost a portable telephone belonging to the police service. He too has been evaluated as performing at a superior level, and received a perfect score on an evaluation to measure his suitability for promotion. His unit commander agreed with this appraisal for the period from December 18, 1999 to February 25, 2001. By all accounts, he was an excellent officer who performed beyond expectations. He loved his work, but was assigned to clerical duties when charges were laid. He felt useless and after 4 years of work in a collision reporting centre, elected to resign, in 2003. During that 4 year period he was advised that charges were imminent on approximately 10 occasions. He was finally charged in January 2004. He and his family have suffered from the public opprobrium associated with charges. His daughter was discouraged by others from pursuing a career in policing because of the charges against her father. He has lost the only career he had ever had. He was a middle aged man with no formal education other than his police training and had to find new employment. He became a car salesman and has suffered a substantial loss of income and benefits. His reputation has been tarnished forever, and he and his family have become socially isolated. The investigative scrutiny has been intense. He and his wife were led to believe that they had won a holiday, and were paired with another couple. A friendship developed, but 9 months later it transpired that this was all an investigative ruse, and the other couple were undercover officers. His health has suffered as a result of the prolonged nature of these proceedings and he has required psychiatric assistance. By all accounts, the offence of which he has been convicted is out of character for him. His counsel expresses concern that any sentence other than a suspended sentence will result in the loss of his licence to sell cars.
[40] Raymond Pollard is 48 years old. He graduated with a B.A. and initially worked for the City of Toronto, but elected to become a police officer like his own father. He was hired by the Toronto Police Service in 1987. He was a hard working officer who put in long hours. He was recommended for promotion but the investigations put an end to those prospects. He has been diagnosed with post traumatic stress disorder, profound depression and anxiety; he has required medication and psychiatric care to deal with the health issues and stress to which the prolonged court proceedings and investigations have contributed. He has been required to report at times once a day to the police station and at other times twice a day. His family has suffered from the intensity of the investigation, and from the public shaming associated with the charges to the point that his wife's health has been impaired. She eloquently describes the grief, shame and stress that these proceedings have brought to their household for the 8 years since the charges were laid, and for the preceding years when the investigation was ongoing. Pollard could not take the humiliation and stress of reporting downtown twice a day, and ultimately decided to resign from the police force. He has since found employment in construction of rental properties and property management. He has become proficient in this line of work. The owner of the company for whom he works indicates that if Pollard is incarcerated, the business would have to be wound up, and half a dozen staff laid off. He has suffered significant financial losses as a result of the loss of his police career. He has also endured significant personal stressors. His son suffers from a rare condition which has required multiple surgeries, and repeated hospitalizations for periods as long as 7 months. After one such surgery in December 2000 he and his wife were told that something had gone wrong and that their son was paralyzed from the neck down. While attending to his son's needs in the hospital, Pollard was told he had two hours to surrender into custody.
[41] In each case, where I mention the difficulties caused by investigations preceding the one which led to the charges now before me, I do so to set the background for increased vulnerability to the stresses caused by the protracted nature of the prosecution which began with the charges laid in January 2004. No convictions resulted from the earlier investigations of the accused for matters unrelated to the case before me; those proceedings were stayed by the Crown.
[42] In reviewing the difficulties caused by the duration of these proceedings upon the accused and their families, I have not lost sight of the fact that the offences committed by the accused, that is to say, the choices made by the accused are primarily responsible for the strain these charges have had upon them and their families.
[43] I reject the submission that some distinction should be made in the duration of the sentence as between Schertzer and the other accused. Each accused was responsible for making the false note in his own memo book and for all except Schertzer, for testifying falsely in court, whether as part of the deception underlying the attempt to obstruct justice count or the perjury count. Schertzer did not lie under oath. There is no evidence he exerted pressure upon the others to commit an offence but he did have additional responsibility as supervising officer. In my view, parity of sentences should apply in these circumstances, where there must have been some consensus amongst the accused.
[44] There is no evidence of a pattern of criminal misconduct extending to matters other than Pang. There is no history of findings of misconduct under the Police Act. There is no evidence of a history of work related misconduct.
[45] I turn then to a consideration of sentences imposed upon similar offenders in similar circumstances.
[46] I do not consider that a penitentiary sentence is warranted. Those cases in which such terms have been imposed are quite different from the one before me. In R. v. Glauser (1981), 1981 ABCA 345, 25 C.R. (3d) 287 (Alta. C.A.) the brother of a man accused of murder lied under oath to help his brother escape a murder charge, and was sentenced to 6 years in jail. He had a lengthy criminal record.
[47] The Crown relies most heavily upon R. v. Hanneson (1989), 1989 CanLII 7159 (ON CA), 49 C.C.C. (3d) 467 (Ont. C.A.). In that case, Hanneson assaulted a person in the back seat of a police car. Three other officers participated in an attempt to cover up the assault by making false documents. The Court upheld a sentence of 3 years incarceration for Hanneson, on the grounds that,
He was the initiator of the whole series of events which culminated in these convictions. He assaulted Stoewner, instigated the cover-up and as the senior officer inevitably exerted pressure on the others to cooperate.
[48] The sentences upon the other appellants were reduced to terms of 9 and six months, depending upon the degree of their involvement. As here, the convictions had catastrophic effects upon the accused.
[49] In R. v. Doiron (2007), 2007 NBCA 41, 221 C.C.C. (3d) 97 (N.B.C.A.), the accused was a lawyer acting on behalf of organized crime who offered money to a witness to persuade them from testifying in an arson trial. Cormier, on whose behalf he was acting, had caused millions of dollars of property damage and had endangered the lives and livelihood of many persons. Doiron tried to help him escape conviction for arson by attempting to obstruct justice; for this he was sentenced to 4 and a half years in a penitentiary.
[50] In R. v. Martin, [2001] O.J. No. 5205 (S.C.J.) the accused had a substantial criminal record acquired in the preceding 5 years, including a conviction for trafficking in cocaine. He pleaded guilty to two counts of attempting to obstruct justice arising from contradictory statements he gave to investigators to attempt to obstruct their investigation into the bombing of the Sudbury police station. On a joint submission, he was sentenced to 3 years incarceration.
[51] The defence points to analogous cases at the other end of the range.
[52] In R. v. Sheremetta, B.C. Sup. Ct. 2012, a police officer became involved in a bar fight while off duty and punched an intervenor. He suggested to a junior officer that he falsify a report to conceal his involvement. He was convicted of obstruct justice upon a guilty plea and received a conditional sentence and six months probation.
[53] In R. v. Liebrecht and Bergen, [2004] S.J. No. 387 the accused officers attempted to interfere in an investigation of impaired driving by a mayor. They prevented other members of the police service from obtaining breath samples and altered records. A sergeant instructed the constable to file a report indicating no charges were laid and made changes to other documents. A $3,000 fine was imposed for obstruct justice, following a trial.
[54] In R. v. Jean-Philippe Mathieu (2011), O.C.J. Matheiu became involved in a physical confrontation while arresting someone. Upon investigation, repeatedly lied about the presence of another person, which was relevant to the assessment of credibility. Upon a guilty plea a year and a half after the incident to obstruct justice he was given a suspended sentence and ordered to perform 150 hours of community service.
[55] In R. v. Boulton, the accused police officer conducted a warrantless search of a crate found to contain 27 kg. of methamphetamine, with a street value of $12 million. He was ordered by a superior officer to prepare an affidavit to obtain a search warrant and to conceal the fact that the crate had already been searched without authorization. The warrant was issued by the Justice of the Peace on the basis of deceits, falsehoods, and material non-disclosure. False memo book notes were also prepared to conceal the warrantless search. The Crown terminated the drug prosecution because of the officer misconduct. Upon a guilty plea to obstruct justice, the officer was given a 3 months conditional sentence.
[56] In my view, a suspended sentence and probation is not proportionate to the gravity of the offences of which the accused have been convicted. I must be concerned with the long term effects of conduct like theirs upon the repute of the administration of justice and the integrity of criminal proceedings.
[57] There are other cases which fall in the mid range and generally are for offences more serious than the ones before me. They demonstrate that committing these kinds of offences for financial gain or to cover up violence or to implicate an innocent person in a crime is a serious aggravating circumstance, one not present in the case before me.
[58] In R. v. Feeney, 2008 ONCA 756, the Court indicated that where the accused police officers committed a,
…collective, premeditated, vicious and humiliating assault upon a defenceless prisoner, and then try to cover up their actions, a sentence emphasizing the principles of deterrence and denunciation is called for. We agree with the appellant that the situation was akin to a breach of trust which normally calls for a custodial term. Moreover, this was a case where the values of our society and its justice system must be vindicated and reflected by a sentence that clearly tells those vested with power and authority that attacks by court officers on vulnerable prisoners will not be tolerated and that when they occur, serious sanctions will be imposed.
[59] In the result the Court of Appeal set aside conditional sentences and imposed jail terms ranging from 30 to 60 days.
[60] In R. v. Leblanc (2003), 2003 NBCA 75, 180 C.C.C. (3d) 265 (N.B.C.A.), the Court overturned a conditional discharge and substituted a 3 month sentence for an officer who responded to a fire at a residence, stole property belonging to the homeowner, and initially implicated fire fighters in the theft.
[61] In R. v. Bannon, 2012 ONCA 557, the Court held that the trial judge was correct to reject a conditional sentence for an aboriginal accused who was a police chief who over a ten year period had accepted $142,437 in kickbacks from an auto dealer in exchange for favourable treatment for the purchase or lease of police vehicles, and upheld a 12 month sentence of incarceration.
[62] In R. v. Ryan, [2004] N.S.J. No. 338 (S.C.); aff'd [2004] N.S.J. No. 360 (C.A.) an officer engaged in a sustained course of drug dealing, using police resources to facilitate his crimes. His motive for so doing was greed, "a love of luxury and a tendency to live beyond his means". He was sentenced to 4 years incarceration.
[63] Having ruled out a penitentiary sentence, I must consider whether a sentence of incarceration served in the community, a conditional sentence is appropriate.
[64] Section 742.1 of the Criminal Code provides that an accused is eligible for a conditional sentence where:
The sentence imposed is less than 2 years
Service of the sentence in the community would not endanger the safety of the community; and
Service of the sentence in the community would be consistent with the fundamental purpose and principles of sentencing in sections 718-718.2 of the Code.
[65] I have ruled out a sentence of two years or more. I am satisfied that service of the sentence in the community would not endanger the safety of the community for any of these accused. The substantial issue is whether the objectives of deterrence and denunciation which must be given primordial importance in this case can be met by a conditional sentence.
[66] I have highlighted some aspects of the lengthy intense and invasive investigation which began more than a decade ago, and the prolonged nature of the court proceedings. No other police officer would willingly trade places with any of these accused. This process in itself constitutes an enormous deterrent to any officer tempted to cut corners or lie under oath. Their lives have been ruined, and for what gain? Cutting a work day short by a couple of hours.
[67] I extract the following principles from R. v. Wismayer (1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.):
"To summarize, s. 742.1 and the companion provisions are designed to give effect to the important principle of restraint in the use of incarceration and should be given a suitably large and liberal construction." (page 44)
"…the enactment of the conditional sentence regime represents a concession to the view that the general deterrent effect of incarceration has been and continues to be somewhat speculative and that there are other ways to give effect to the objective of general deterrence…In view of its extremely negative collateral effects, incarceration should be used with great restraint where the justification is general deterrence." (page 36)
The goal of denunciation can continue to operate with a conditional sentence as the offender still carries the societal stigma of being a convicted offender who is serving a criminal sentence. (page 39)
[68] Weighing all of the above, I come to the conclusion that a sentence of 45 days incarceration, served in the community under house arrest appropriately balances the aggravating and mitigating circumstances in this case.
[69] I sentence each of the accused to a conditional sentence of 45 days imprisonment.
[70] Section 742.3 of the Criminal Code requires that you:
Keep the peace and be of good behaviour
Appear before the Court when required to do so by the Court
Report to a supervisor within 3 working days from today, and thereafter continue to report as directed by the supervisor
Do not leave the jurisdiction without written permission of the court or the supervisor
Notify the court or supervisor in advance of any change of name or address, and promptly notify the court or supervisor of any change of employment or occupation.
[71] These conditions are mandatory and cannot be changed.
[72] I impose the following additional conditions:
You are to remain within your home throughout the period except for the following times:
Absences to pursue employment or earn an income and travel for that purpose
Absences for health related appointments for yourself or family members and travel for that purpose
Absences to consult counsel or attend court, and travel for that purpose
Four hours each Saturday from 10 a.m. to 2 p.m. to attend to personal needs.
[73] I direct that the Clerk shall provide you with a copy of the conditional sentence order and an explanation if requested. Secondly, that the Clerk explain to you the substance and procedure of ss. 742.4 and 742.6 to ensure that you understand the conditions that have been imposed on you, what may occur if you violate any of those conditions, and the procedure to be followed if you wish to make an application to change any of the additional conditions of the order. Thirdly, that the Clerk certifies that the order and explanations have been given and that you have indicated your understanding of them. In the event the Clerk cannot so certify, you will be brought back before the Court for further directions.
G. Pardu J.
Date: January 4, 2013
COURT FILE NO.: CR837/10
DATE: 20130104
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
JOHN SCHERTZER, STEVEN CORREIA, NED NEBOJSA MAODUS, JOSEPH MICHED and RAYMOND POLLARD
REASONS FOR SENTENCE
G. PARDU J.
Released: January 4, 2013