ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14/837
DATE: 2015-11-02

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

CRAIG EDWARD PICKERING
Appellant

Michael Carnegie, for the Crown (Respondent)

Robert Sheppard, for the Accused (Appellant)

HEARD: October 13, 2015 at London

heeney r.s.j.:

[1] This is an appeal as to sentence only. The Appellant was convicted of assault causing bodily harm contrary to s. 267 (b) of the Criminal Code on June 25, 2014 by Dean J. of the Ontario Court of Justice. On November 3, 2014 he was sentenced to a 30 day conditional sentence. That sentence has been fully served.

[2] The Appellant asks that the sentence be vacated and that he instead receive a conditional discharge with a period of 12 months’ probation, on terms that the court deems appropriate.

[3] The Appellant was a Court Prisoner Security Officer (“CPSO”) with the London Police Service, on active duty at the London Courthouse. He was responsible for the movement, management and supervision of inmates while at the courthouse.

[4] On May 14, 2013, a prisoner was brought to court by the name of Timothy Vandusen. He had developed some notoriety as being, at times, a difficult inmate to handle, and about one month earlier had wilfully set off the cell block sprinklers in protest of events that day. That led to a charge of mischief, which was one of the charges he was facing in court on the day in question.

[5] At the conclusion of his court appearance, Vandusen became agitated and threatened to set off the sprinklers again. A plan was arrived at among the CPSOs to put him in handcuffs and leg shackles and house him in a dry cell.

[6] The Appellant applied the restraints to Vandusen, with the assistance of others. Vandusen appeared to resist being put into the cell. The Appellant grabbed him by the shoulders and forcefully, and surprisingly rapidly, pushed him into the cell and propelled him the entire 11 foot length of the cell, until Vandusen crashed face first into the concrete wall. He fell to the floor, and the Appellant immediately left the cell, closing the door behind him. Vandusen suffered 3 broken teeth and a cut lip.

[7] The entire episode was captured on surveillance video. It was filed as part of the Appeal Book and I viewed it. It is difficult to watch without wincing.

[8] The trial judge found that the Appellant had used unreasonable force and convicted him.

[9] At the sentencing hearing, the Crown sought a sentence, to be served in jail not in the community, of 30 to 45 days. Defence counsel sought a conditional discharge with probation. As already noted, the sentence imposed was a conditional sentence of 30 days. The reasons of the sentencing judge are reported at 2014 ONCJ 594, [2014] O.J. No. 5323 (O.C.J.).

[10] The standard of review is one of great deference to the decision of the sentencing judge. In R. v. L.M., 2008 SCC 31, [2008] S.C.J. No. 31, LeBel J., speaking for the court, said this at paras. 14-15:

In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judges where appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered a different one. The court must be "convinced it is not fit", that is, "that ... the sentence [is] clearly unreasonable" (R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at para. 46; quoted in R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, at para. 15). This Court also made the following comment in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 90:

... absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

(See also R. v. W. (G.), 1999 668 (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359; and F. Dadour, De la détermination de la peine: principes et applications (2007), at p. 298.)

Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has "served on the front lines of our criminal justice system" and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and the offender (M. (C.A.), at para. 91). In sum, in the case at bar, the Court of Appeal was required - for practical reasons, since the trier of fact was in the best position to determine the appropriate sentence for L.M. - to show deference to the sentence imposed by the trial judge.

[11] Mr. Sheppard, for the Appellant, concedes that he cannot argue that the sentence is demonstrably unfit.

[12] It was argued that the sentencing judge erred in law in applying conclusory reasoning. Reference was made to para. 60, where the judge said this:

When I balance and carefully consider all of the above I have concluded, in the case before me, it would be contrary to the public interest that a discharge be granted.

[13] Taken on its own, that is a conclusory statement. However, it is preceded by 59 paragraphs where the sentencing judge carefully and thoroughly refers to and analyzes all relevant factors. It is, of necessity, conclusory because it represents the end product of his analysis.

[14] It was argued that the sentencing judge failed to give proper emphasis to the mitigating factors including: the fact that he had an unblemished record as an employee; that numerous character references showed him to be a good husband and father, a good neighbour and a well-regarded CPSO; that this incident was entirely out of character; and, that he had already suffered enormously from his actions in that he lost his job and his career and had to retrain as a technician in the heating and air conditioning field.

[15] Each of those factors was expressly referred to and considered by the sentencing judge. However, he also correctly considered the fact that prisoner guards are in a position of trust toward those in custody. Where that trust is breached, deterrence and denunciation become the predominant objectives. The following represents part of the sentencing judge’s analysis in this regard, at paras. 47 to 49:

Clearly a discharge is in the best interest of Mr. Pickering. The question is whether it is in the public interest given the breach of public trust that occurred in this case. Because of the criminal conduct which occurred and the need to deter others from engaging in the same type of criminal conduct is it contrary to the public interest to grant a conditional discharge since it might be argued that there is not enough deterrent effect in the imposition of such a type of sentence? Persons in similar positions as Mr. Pickering must know that they will be vigorously prosecuted and, if convicted, sternly punished. This court cannot send a message to other law enforcement officials that the conduct at bar was not serious. The sentence I impose must denounce the criminal conduct and act as a deterrent to other law enforcement officials.

Court Prisoner Security Officers, like police and correctional officers are in special positions of power over those in their custody. They are given extraordinary powers over prisoners so that they can properly carry out their duties. Mr. Pickering had been employed for twelve years and would fully understand that he was in a position of trust.

When a CPSO assaults a person in custody it's a serious crime, not only against the person in custody, but against the justice system itself. Persons in custody are vulnerable and defenceless, and must be protected from assault and excessive use of force. The public expects a high standard of conduct and any abuse of power or excessive use of force must not be tolerated.

[16] It cannot be argued that the sentencing judge overemphasized the principles of denunciation and deterrence, while underemphasizing other factors, because it is precisely the principles of denunciation and deterrence that the Ontario Court of Appeal has ruled should be emphasized in cases of this nature. In R. v. Byrne, 2009 ONCA 134, [2009] O.J. No. 558 (C.A.), the accused was a court officer who was convicted of assaulting a young female in his custody. Feldman J.A., speaking for the court, said the following, at paras. 16 to 18:

In R. v. Feeney, [2008] O.J. No. 4464 (C.A.) four court officers with the Toronto Police Service were convicted of assaulting a prisoner in the holding cells of the Old City Hall courthouse. The assault was a vicious revenge attack by four officers on a prisoner who had spilled juice on another officer. The four defendants also attempted to cover up their involvement, which included falsifying reports.

The trial judge imposed conditional sentences ranging between 45 and 90 days, plus six months probation and 50 hours of community service. This court found that the sentences were demonstrably unfit and did not give sufficient weight to the principles of deterrence and denunciation. The court emphasized the fact that as officers in the justice system, the defendants owed a duty to the public. Further, as persons in authority, entrusted with the care of persons in their custody, they owed a duty to the victim to take care for his safety.

The court stated at para. 6 of the judgment:

When officers entrusted with such duties commit 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.

[17] At para. 24, Feldman J.A. again made it clear that the sentence must adequately reflect deterrence and denunciation for this type of abuse of authority and breach of trust:

In my view, the summary conviction appeal judge erred by interfering with the sentence imposed by the trial judge. In sentencing matters, significant deference is owed to trial judges. In this case, the sentence he imposed was well within the appropriate range. Furthermore, the sentence that was substituted by the summary conviction appeal judge was outside the range and did not adequately reflect the principles of deterrence and denunciation that are necessary for this type of abuse of authority and breach of trust. I note that as in Feeney, not only was there a prolonged assault on a defenceless victim, the respondent then attempted to subvert justice by falsifying the evidence and influencing another officer to do the same.

[18] The Appellant also argued that the sentencing judge erred in law by failing to draw a logical nexus between the aggravating factors and his ultimate conclusion that granting a discharge would not be in the public interest. I have already quoted above, at para. 15, where the sentencing judge considered the public interest in the context of whether a discharge would adequately address the principles of denunciation and deterrence. He made no error of law in doing so.

[19] In R. v. Sanchez-Pino, 1973 794 (ON CA), [1973] O.J. No. 1903 (C.A.), Arnup J.A., speaking for the court, considered what is to be considered by a sentencing judge in determining whether granting a discharge would be “contrary to the public interest”. He said this, at para. 17:

The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

[20] The sentencing judge was, therefore, legally correct in drawing the logical nexus between the public interest and the principles of denunciation and deterrence. He also correctly observed, at paras. 53-54, that in cases involving violence resulting in injury, the requirement of general deterrence militates, in almost every case, against the grant of a conditional discharge:

In the case of R. v. Wood 1975 1410 (ON CA), [1975] O.J. No. 290, the Ontario Court of Appeal stated at paragraph four:

It is our view that in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused.

The Appeal Court in the very next paragraph went on to say:

In this case, accordingly, we are of the opinion that a grant of conditional discharge would not be in the public interest; we are not convinced that the interests of the appellant will be seriously prejudiced by the registration of a conviction.

[21] Finally, it was argued that the sentencing judge erred in finding that a discharge was within the appropriate range of sentence, but then failed to articulate what elevated this case from that starting point. With respect, counsel is misreading the reasons of the sentencing judge. He did, at para. 55, state that the applicable caselaw “did not preclude the granting of a discharge in an appropriate case.” [emphasis added] That was a general comment as to the range of sentence available for an offence of this nature. However, his reasons make it abundantly clear that on the specific facts and circumstances of this case, including his finding that it was “a deliberate callous act”, a discharge was not appropriate.

[22] The sentencing judge clearly struggled with this case, which was made more difficult because of the “exemplary character and background” of the accused. However, he fully and fairly considered all relevant circumstances, as well as the relevant principles and objectives of sentencing. There is no basis to interfere with his decision.

[23] The appeal is dismissed.

“T. A. Heeney R.S.J.”

Regional Senior Justice T. A. Heeney

Released: November 2, 2015

COURT FILE NO.: 14/837

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Respondent

– and –

CRAIG EDWARD PICKERING
Appellant

REASONS FOR JUDGMENT

T. A. HEENEY R.S.J.

Released: November 2, 2015