Introduction

[1] Colin Goodwin has been a police officer for almost 30 years. On September 6, 2017, Mr. Goodwin tried to arrest a man for break and enter and failing to comply with a recognizance. The man was sitting in the driver’s seat of a car that was stopped at a red light. There was a woman sitting in the front passenger seat. As Mr. Goodwin approached the driver’s side door, identifying himself as a police officer, the man started to drive away. Mr. Goodwin then shot his gun four times towards the car.

[2] There is no dispute that Mr. Goodwin fired the fourth shot without taking reasonable precautions for the safety of other persons and that he placed the lives of others at risk of death or serious bodily harm. Mr. Goodwin admits that in discharging the fourth round, he used his firearm in a manner that was both careless and not legally justified.

[3] As a result, Mr. Goodwin pleaded guilty before me to one count of careless use of a firearm, contrary to s. 86(1) of the Criminal Code.

[4] The defence argues that Mr. Goodwin should receive an absolute discharge. The Crown counters that a discharge would be contrary to the public interest and that a conviction should be entered. He argues that Mr. Goodwin should receive a fine of between $2,500 to $5,000.[^1]

[5] The present case is a challenging one. What is the appropriate sentence for a dedicated police officer who misused his gun in the course of his duties? It is clear that an absolute discharge would be in Mr. Goodwin’s best interests. He is a person of good character, without a previous conviction, it is not necessary to enter a conviction against him in order to deter him from further offences or to rehabilitate him and the entry of a conviction may have adverse repercussions: R. v. Fallofield, 1973 1412 (BC CA), [1973] B.C.J. No. 559 (C.A.), at para. 21. The more difficult question is whether a discharge would be contrary to the public interest.

[6] For the reasons set out below, I have determined that a conviction is required in the circumstances of this case. By misusing his firearm in the manner in which he did, Mr. Goodwin abused his authority and breached the trust of the public. A discharge would fail to give sufficient voice to the sentencing objectives of denunciation and general deterrence and would be contrary to the public interest.

Circumstances of the Offence

[7] Mr. Goodwin is a Detective Constable with the Durham Regional Police Service. In 2017, he was working with the Offender Management Unit, which oversees the administration, monitoring and enforcement of people released on bail, probation or parole within the Durham Region.

[8] On September 6, 2017, a Detective with the Major Crime Unit asked Mr. Goodwin to find and arrest Felix Funes-Vasquez for break and enter and breach of recognizance.

[9] At approximately 11:00 a.m., Mr. Goodwin saw Mr. Funes-Vasquez drive away from his residence, joined by a female passenger.

[10] Mr. Goodwin followed Mr. Funes-Vasquez until he stopped at a red light in the area of Toronto commonly known as The Stockyards, a popular shopping area. There was a townhouse complex to the north and several big-box stores and parking lots to the south. Mr. Funes-Vasquez was stopped behind a car that was waiting to turn right into the plaza.

[11] Despite the fact that businesses were open and there were numerous cars in the vicinity, Mr. Goodwin decided to do a “takedown” of Mr. Funes-Vasquez. Although Mr. Goodwin was working with a team of three other officers, they were behind him and not in a position to assist him as he tried to effect the arrest.

[12] Mr. Goodwin drove up along the left side of the car driven by Mr. Funes-Vasquez and angled his truck across the front driver’s side of the car, in an attempt to block him in. Mr. Goodwin got out of his truck and approached Mr. Funes-Vasquez’s car from the rear driver’s side. Mr. Goodwin had his police issue .40 caliber Glock semi-automatic handgun drawn and pointed at the car. He was wearing street clothes, over which he wore a dark blue ballistic vest that said “POLICE” in white on the front and back. As he approached the car, Mr. Goodwin shouted out that he was a police officer.

[13] As Mr. Goodwin made physical contact with the driver’s door area, the car ahead of Mr. Funes-Vasquez made the right turn, leaving the lane free. Mr. Funes-Vasquez then reversed his car slightly and drove around Mr. Goodwin’s truck, to the right and then forward. During this interaction, including when his arm was in contact with the car door, Mr. Goodwin fired his gun four times at the car.

[14] The first three shots fired by Mr. Goodwin went into the driver’s area of the car in an unknown order. One of the shots passed through the open driver’s window, through Mr. Funes-Vasquez’s left arm and into the steering column/airbag. Another shot went through the open window and embedded into the dashboard to the left of the steering column. The third shot struck the top of the driver’s door, close to the window. While Mr. Goodwin was originally charged with aggravated assault as a result of the bullet hitting Mr. Funes-Vasquez’s arm, pursuant to the plea agreement, the Crown will be withdrawing that charge. The Crown is not alleging that the first three shots were criminal, and these shots do not form any part of the basis for Mr. Goodwin’s plea or admission of liability in this case.

[15] The fourth shot hit the rear of the car in the metal roof strut just above the rear windscreen. The shot was fired by Mr. Goodwin when he was at the rear left side of the car. Neither Mr. Goodwin nor anyone in the vicinity were in an immediate threat of loss of life or grievous bodily harm when he fired this shot.

[16] Had the fourth shot been slightly to the right, the projectile may well have struck the female passenger. Further, given that the businesses in the area were open, it was reasonably foreseeable that the area would be occupied by shoppers and pedestrians. If the fourth shot missed the car and travelled over the roof of the car, it could have endangered the lives of persons at the shopping plaza.

[17] The car was later recovered in a wooded area by the OPP and Mr. Funes-Vasquez was eventually arrested. He received medical attention for the gunshot wounds while in jail. Mr. Funes-Vasquez ultimately pleaded guilty to breaching his bail.

[18] Mr. Goodwin admits by entering his plea of guilt that he fired the fourth shot without taking reasonable precautions for the safety of other persons and that he placed the lives of others at risk of death or serious bodily harm. He admits that he fired the fourth shot in a manner that was both careless and not legally justified.

Impact on the Victim

[19] Mr. Funes-Vasquez filed a Victim Impact Statement. Understandably, some of his comments relate to the pain and trauma he has suffered because he was shot in the arm. Mr. Goodwin, however, did not admit criminal liability for that shot, and I must keep that in mind as I assess Mr. Funes-Vasquez’s statement. That said, Mr. Goodwin, without any legal justification, fired a bullet into Mr. Funes-Vasquez’s car. This shot no doubt contributed to the anxiety, panic attacks, trouble sleeping and ongoing fear that Mr. Funes-Vasquez suffers as a result of the incident. By firing a bullet into Mr. Funes-Vasquez’s car without any legal justification, Mr. Goodwin caused him emotional trauma.

Circumstances of the Offender

[20] Mr. Goodwin is 49 years old. He is married and has two adult children, ages 21 and 22.

[21] Mr. Goodwin started with the Durham Regional Police Service right out of high school in 1989 as a cadet. He became a full-time officer in 1992. By all accounts, Mr. Goodwin has been a dedicated and hard-working officer, who has risen to the rank of Detective Constable. He spent a number of years working to combat organized crime and, in that role, was often involved in dynamic entries and high-risk takedowns. From 2001 to 2014, he was an investigator with the Fraud Unit and had the highest successful clearance rate in his unit. In 2014, he joined the Offender Management Unit, where he also was called upon to conduct high-risk takedowns on average of eight times a year.

[22] Along with his regular police duties, Mr. Goodwin has taken on a variety of volunteer positions. From 1989 to 1993, he volunteered as a civilian instructor at the Royal Canadian Army Cadet Corps and got his Queen’s Commission as a Second Lieutenant as a cadet instructor.

[23] In 1993, Mr. Goodwin became a founding member of the Durham Regional Police Ceremonial Unit (Honour Guard) and through the years has participated in ceremonial events such as funerals and memorials. In 2016, he was chosen by his peers (and endorsed and recommended by his Chief) to be the first Regimental Sergeant Major of this unit. Mr. Goodwin has also volunteered his time for several years at the annual Durham Regional Police children’s Christmas party.

[24] In 2001, Mr. Goodwin volunteered with the Public Safety Unit where officers, in addition to their regular duties, assist with things such as searching for missing persons and keeping public order during protests. Officers who volunteer with this unit must be willing to work at any hour, whenever the need arises. Mr. Goodwin was actively involved in searching for missing children and elderly persons as well as assisting in keeping the peace during the G20 summit.

[25] Mr. Goodwin has also served for many years as a director with the Durham Regional Police Association. He is currently the Association president, which as one fellow officer wrote, “speaks volumes to his character and the great respect that so many have for him.” Mr. Goodwin has also been actively involved in both formal and informal teaching and mentoring of other officers.

[26] Many of his colleagues with the Durham Regional Police Service wrote letters in support of Mr. Goodwin and noted his commitment to his profession and his colleagues. His fellow officers describe him as “easygoing and calm”, a “strong leader”, and someone with a “high moral character” and “a high level of personal integrity” who is committed to serving the public.

Sentencing Principles and Objectives

[27] Before turning to my analysis regarding what I view as the appropriate sentence in this case, I propose to briefly address the relevant sentencing principles and objectives.

[28] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general or specific deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done to victims or to the community and promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community.

[29] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the offender. As explained in R. v. Lacasse, 2015 SCC 64, at para. 58, the “determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.”

[30] The fixing of a fit sentence must always take into account the combined effects of the circumstances of the offence with the unique attributes of the specific offender: R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.), at para. 87. This is reflected in the proportionality requirement, which is described in s. 718.1 of the Criminal Code as the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[31] In addition to proportionality, the Criminal Code lists a number of other principles to guide sentencing judges. The parity principle is set out in s. 718.2(b), which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The totality principle is addressed by s. 718.2(c). The restraint principle is reflected in both ss. 718.2(d) and (e). As the Ontario Court of Appeal confirmed in Hamilton, at para. 96, the principle of restraint means that the sentencing court should seek to impose the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction.

[32] An absolute discharge is an available sentencing option for offences where there is no minimum sentence, the maximum sentence is less than 14 years, and where the court determines that such a sentence is in the best interests of the offender and that it is not contrary to the public interest. Careless use of a firearm is punishable by a maximum sentence of two years, when it is a first offence and the Crown proceeds by indictment, as in the present case. As a result, a discharge is an available sentence for Mr. Goodwin.

[33] Pursuant to s. 718.2(a) of the Criminal Code, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.

Aggravating Factors

[34] Mr. Goodwin fired his gun in a busy shopping area at 11:00 a.m. in the morning. In so doing, Mr. Goodwin endangered the lives and safety of many innocent persons.

[35] Further, Mr. Goodwin shot his gun without any legal justification in Toronto, a city traumatized by the all-too-frequent use of guns on our streets.

[36] Mr. Goodwin is a police officer who misused his firearm, while sworn to uphold the law. Mr. Goodwin thus abused his authority and breached the trust of the public in general: R. v. Forcillo, 2018 ONCA 402, at para. 198. This is highly aggravating.

Mitigating Factors

[37] Mr. Goodwin pleaded guilty and saved the court time and resources. His plea is also indicative of remorse. He is entitled to mitigation in his sentence as a result.

[38] Mr. Goodwin has no previous record. He has spent his life engaged in prosocial pursuits.

[39] Mr. Goodwin is highly respected by his fellow officers, who described him in glowing terms. He has volunteered much of his time to help others, both within the police service and in the community.

[40] By all accounts, the action that Mr. Goodwin took in firing his gun without justification was completely out of character.

Analysis

[41] Mr. Goodwin has shown throughout his life that he can be a positive and contributing member of society. There is little need to focus on the sentencing objectives of specific deterrence or rehabilitation. Mr. Goodwin is unlikely to ever be before the courts as an offender again.

[42] That said, as noted in R. v. Schertzer, 2015 ONCA 259, at para. 136, when the perpetrator of the crime is a police officer, the objective of denunciation has heightened significance. More recently, in Forcillo, at para. 199, the Court of Appeal stressed that when an officer misuses his gun, the objectives of denunciation and general deterrence take on greater significance.

[43] As I noted at the outset of these reasons, there is no question that a discharge would be in Mr. Goodwin’s interests. While his job will not be threatened if I impose a conviction, there are potentially other consequences for Mr. Goodwin, such as an impact on his ability to travel. The real issue I must determine is whether a discharge would be contrary to the public interest.

[44] In support of his submission that an absolute discharge is appropriate, defence counsel relies on the case of R. v. Sokolowski, [1994] O.J. No. 728 (Gen. Div.). That is a decision where a police officer was convicted of careless use of his firearm in the course of his duties. While there is no reported sentencing decision, a transcript from the reasons in Mr. Sokolowski’s Police Misconduct Hearing refer to the fact that Mr. Sokolowski received an absolute discharge. Defence counsel argues that Mr. Goodwin’s case is similar, and that he should also be given an absolute discharge for his careless use of a firearm.

[45] There are significant differences, however, between the facts in the Sokolowski matter and the facts before me. In Sokolowski, the officer had his gun in his hand as he tried to arrest two suspects. In the struggle, he inadvertently shot one of the suspects, causing him serious injury. The officer was found guilty because the court determined that “[n]o reasonably prudent person would engage in a physical confrontation with another on uneven and unfamiliar ground in poor or no light, endeavouring to put that person at a disadvantage with one hand whilst holding, in the other, a loaded weapon with his finger on the trigger”: Sokolowski, at para. 113. In my view, the actions of Mr. Goodwin in purposely shooting his gun are more serious than the facts in Sokolowski, where the officer mistakenly shot his gun.

[46] Further, in Sokolowski, it seems that general deterrence was not a significant factor, as after the incident, the police changed how they trained their officers to handle their guns to ensure that a similar incident did not occur: Sokolowski, Notice of Decision in Misconduct Hearing, February 10, 2000, at p. 3, l. 20. In the present case, however, general deterrence is an important sentencing objective.

[47] Defence counsel also argues that Mr. Goodwin acted out of character, which supports an absolute discharge. There is caselaw that suggests that where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: R. v. Hayes, [1999] O.J. No. 938 (Gen. Div.), at para. 32. In the present case, there is no dispute that Mr. Goodwin acted out of character. But I have no information to suggest that he was dealing with any unusual pressure or difficult life circumstances that led him to fire his gun without any legal justification and endanger the lives and safety of innocent persons.

[48] Counsel also argues that a conviction is not necessarily a greater deterrent to others than a discharge: Hayes, at para. 32. In this case, however, Mr. Goodwin is a police officer. The need for general deterrence applies to other police officers, who our community expects to wield their weapons in a lawful manner. Police officers, more than most, would understand that a conviction is a more significant penalty than a discharge. Thus, in my view, a conviction in these circumstances would have a greater general deterrent effect than a discharge, particularly an absolute one.

[49] And there is a need to emphasize both general deterrence and denunciation given the facts in this matter. Mr. Goodwin endangered the public with the careless and unjustified use of his gun. For no apparent reason. In a city plagued by gun violence. It must be said in no uncertain terms that his conduct is unacceptable. Moreover, other officers who are entrusted with firearms must get the message that if they abuse the trust of the pubic by misusing their weapons, there will be consequences.

[50] Considering the above, I have concluded that a discharge would be contrary to the public interest. Such a sentence would fail to place sufficient emphasis on the pressing objectives of denunciation and general deterrence.

[51] In my view, a conviction must be imposed in the circumstances of this case. I have determined that a fine of $5,000 is a fit and proportionate sentence. This sentence gives voice to the objectives of denunciation and deterrence, while still recognizing the mitigating factors in this case, and the important principle of restraint.

Conclusion

[52] Mr. Goodwin is ordered to pay a fine of $5,000. He has 12 months to pay. The fine is to be paid to the Clerk of the Court, in person or by mail. Cheques or money orders are payable to the Minister of Finance. Given the date of the offence, the victim surcharge does not apply: R. v. Boudreault, 2018 SCC 58.

Justice Heather McArthur

Released: January 30, 2020

R. v. Goodwin, 2020 ONSC 625

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

COLIN GOODWIN

REASONS FOR SENTENCE

Justice Heather McArthur

Released: January 30, 2020

[^1]: The Crown is not seeking any ancillary orders.

R. v. Goodwin, 2020 ONSC 625

Case Summary

Introduction

Circumstances of the Offence

Impact on the Victim

Circumstances of the Offender

Sentencing Principles and Objectives

Aggravating Factors

Mitigating Factors

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legislation 3