Court File and Parties
OSHAWA COURT FILE NO.: CR-14944/18 DATE: 20201222 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – AMANDEEP THAKUR Defendant
Counsel: Peter Scrutton for the Crown Brian Ross for Mr. Thakur
HEARD: December 22, 2020
Reasons for Sentence
Boswell J.
[1] Mr. Thakur entered a guilty plea before me today to one count of theft under $5,000.
The Offence
[2] The following facts were read into the record by the Crown and accepted as substantially correct by Mr. Thakur:
(a) DRPS officers conducted an u/c drug investigation into a location known as the Black Bear Bar and Grill in Ajax; (b) The investigation led to charges against 3 civilians and one police officer – Husen Aswat; (c) Mr. Thakur was a friend of Mr. Aswat, but was not implicated in the drug investigation; (d) During the course of the drug investigation, Mr. Aswat was the subject of a sting conducted by DRPS officers. As a result of the sting, Mr. Aswat received a bag containing $5,000. The money belonged to the DRPS. The bag was part of a pretext involving an apparent drug dealer who left the bag behind in an Uber car. The purported Uber driver delivered the bag to Mr. Aswat, reporting that it smelled like dope; (e) Mr. Aswat kept the money from the bag and contacted Mr. Thakur to ask if he needed or wanted to share in it. Mr. Thakur agreed and together they purchased a fishing boat. Mr. Aswat filed a police report about the bag but omitted any reference to the cash found in it.
The Parties’ Positions
[3] The parties are not far apart in terms of their sentencing positions. Indeed, there is a joint submission that it is appropriate for the court to dispose of this matter by way of a discharge. Where the parties diverge is on whether there should be an absolute discharge, as Mr. Ross submits, or a conditional discharge with a year’s probation, as Mr. Scrutton contends.
The Governing Principles
[4] Punishment, by the imposition of a criminal sentence, is intended to meet a number of objectives in Canadian criminal law. Those objectives are codified in s. 718 of the Criminal Code and include: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done. The importance of these individual objectives, and how they interact, varies from case to case.
[5] In this instance, there is no doubt that the most pressing objectives are denunciation, deterrence and the promotion of responsibility for the offence.
[6] When considering what punishment is necessary to achieve these relevant objectives, the court is guided by the fundamental principle of proportionality. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr. C.
[7] Proportionality engages two concepts: censure and restraint. It requires the court to determine the minimal level of punishment that will sufficiently reflect the gravity of the offence and the moral blameworthiness of the offender and then impose no more than that. See R. v. Ipeelee, 2012 SCC 13, at para. 37.
[8] Sentencing is an individualized exercise. It has been described by the Supreme Court as one of the most delicate stages of the criminal process. See R. v. Lacasse, 2015 SCC 64 at para. 1. The court must carefully consider the particular circumstances of the offence and of the offender. Any aggravating and mitigating circumstances must be taken into account.
Discussion
The Circumstances of Mr. Thakur
[9] Mr. Thakur is 34 years old. He is married, with two young children.
[10] His counsel filed with the court fifty-five documents in the nature of achievement certificates and recognitions dating from 1996 to 2015. They make it apparent that Mr. Thakur was a bright student in high school; that he was involved in a variety of extra-curricular activities; and that he was a good athlete, particularly in track and field and cricket.
[11] Following high school, he enrolled in the Police Foundations program at Humber College where he excelled.
[12] He was accepted as an auxiliary member of the TPS in September 2005.
[13] He was hired on to the DRPS in April 2009 and continued to work for that force until he resigned on November 27, 2020. He was a qualified scenes of crime officer.
[14] The materials filed by counsel support the conclusion that Mr. Thakur had an exemplary career as a police officer, frequently receiving positive feedback from other officers and members of the public alike. Much of that feedback speaks to a person of strong character, respectful of those he interacted with, and with a genuine concern for his fellow citizens.
[15] Mr. Thakur’s counsel also filed 18 letters of support for Mr. Thakur from friends, family members, neighbours and co-workers. They present Mr. Thakur as a kind, generous, hardworking person. They speak to his positive contributions to the community. And they express astonishment that he could be caught up in an offence so markedly out of character for him.
[16] His wife shared a story about how Mr. Thakur came to know of a woman who had lost her job and was living out of her car. He invited the woman to live with their family, which she did, for roughly a year. She was able to turn her life around, finish school, obtain a good job and become independent.
[17] Despite all of his achievements and his kindnesses, Mr. Thakur experienced a good deal of racism and abuse throughout his career.
[18] Mr. Thakur has been diagnosed with PTSD. His wife described several years of his declining mental health; his nightmares; his flashbacks; and his increased drinking as a maladaptive means of coping with his health problems.
[19] Mr. Thakur’s psychologist has diagnosed him with PTSD as well as Persistent Depressive Disorder. She opines that these illnesses predated this offence and contributed to the poor decisions made by Mr. Thakur in relation to the offence.
[20] Over 8 years as a SOCO officer, Mr. Thakur attended hundreds of crime and sudden death scenes. He has attended scenes of shocking brutality, violence and cruelty, gruesome accidents and suicides. And he has meticulously documented those scenes. That he should have PTSD is not surprising.
[21] I accept that at the time of this offence, Mr. Thakur was suffering from undiagnosed PTSD and depression. I accept that he was drinking more than he should and that his relationship with his wife was suffering.
[22] I also accept that he was in a dysfunctional relationship with his co-accused, Mr. Aswat, a fellow police-officer. He was apparently given the responsibility of looking out for Mr. Aswat, who had his own mental health issues and threatened suicide – requiring Mr. Thakur’s intervention – on more than one occasion. It was Mr. Aswat who tempted Mr. Thakur with the $5,000 in “found money”.
[23] I accept that this constellation of factors inform Mr. Thakur’s participation in an offence that is otherwise markedly out of character for him.
Is Probation Required?
[24] It is Mr. Thakur’s status as a police officer at the time of this offence that explains the divergence in counsel’s sentencing positions.
[25] Crown counsel acknowledges that a discharge – whether conditional or absolute – is at the low end of the sentencing range. He joins defence counsel in the submission that a discharge would not be against the public interest in this case given a number of significant mitigating factors, which include:
(a) The fact that the offence was spontaneous – a one-off error in judgment not made during the course of his duties as a police officer; (b) The guilty plea, which has saved 5 weeks of trial time, including an entrapment application; (c) The fact that Mr. Thakur has made full restitution to DRPS for the $5,000 taken. He has not materially benefitted in any way from the offence; (d) The fact that Mr. Thakur has accepted responsibility and resigned from the DRPS.
[26] Crown counsel is unable to join in the request for an absolute discharge, however, because of Mr. Thakur’s standing as a police constable. The Crown’s position is that this is a significantly aggravating feature of the case and supports the conclusion that an absolute discharge does not sufficiently denounce the conduct engaged in by Mr. Thakur. He submits that something more than collateral consequences is necessary to sufficiently denounce this conduct and that something is a one year period of probation on the statutory terms.
[27] Defence counsel emphasizes just how profoundly out of character this offence was for Mr. Thakur. The review of the arc of his life’s narrative from high school until now shows that he has always been a respectful, respected, productive and committed member of the community. And he had a long-standing dream of becoming a police officer. A dream he realized and how now lost.
[28] Mr. Thakur has received an immense amount of support from not only his family and friends, but other members of the community as well.
[29] Mr. Thakur made heartfelt and articulate submissions to the court while exercising his right of elocution. He explained the painful impact of his work as a SOCO officer. And he described the impact of the offences on him. He will forever be labelled a corrupt police officer caught up in a drug investigation. Numerous articles in the press referred to him and Mr. Aswat as two officers charged in a narcotics investigation. He had nothing to do with drugs and yet his future employment prospects will likely be negatively affected by inaccurate media reports.
[30] Mr. Thakur advises that he has been in therapy and is committed to full recovery.
[31] I must agree with the Crown that Mr. Thakur’s status as a police officer is a particularly aggravating circumstance. Mr. Thakur did not commit the offence during the course of his duties as a police officer. In fact, he was on paternity leave at the time the offence was committed. But whether on or off duty, Mr. Thakur was a public servant, sworn to uphold the law and the security of the community. Corruption in the ranks of law enforcement undermines the community’s trust in the police and in democratic institutions more generally.
[32] But it would be a mistake to assess Mr. Thakur’s role as a police officer by taking a snapshot of one moment on one day; by looking only at his one appalling instance of misjudgment. His career was otherwise remarkable. He was overwhelmingly a genuine credit to himself, to the DRPS and to the community at large. And it must be recognized that the one instance of misjudgment occurred at a time when he was suffering the effects of undiagnosed and untreated PTSD and depression.
[33] In my view, the punishment imposed must also be considered in light of what Professor Benjamin Berger has described as “the lived experience” of the offender. The lived reality of the offender is defined not only by the number of months or years of impaired liberty imposed upon him or her, but also by an aggregate of his or her experience of suffering, including stigma, alienation, pain and loss. See Benjamin Berger, “Sentencing and the Salience of Pain and Hope” (2015), 70 SCLR (2d) 317.
[34] Mr. Thakur has had a full serving of pain and loss. His role as a first responder took a heavy toll on him. This was a toll incurred for the benefit of the community, but at his expense. He has now lost his career and will be followed by the stigma and shame of his participation in this offence for many years.
[35] He was arrested in the middle of the night, hauled out of his home in front of his infant child and held in custody for two days before being released on what amounts to a theft under $5,000 charge. He has been on bail and subject to the terms of a recognizance for three years.
[36] Counsel join in the submission that a discharge is appropriate and I agree. Crown counsel believes that the collateral consequences suffered by Mr. Thakur are not sufficient to satisfy the public interest. He urges the court to impose at least some measure of sanction to emphasize the court’s disapproval of Mr. Thakur’s conduct. In the unique circumstances of this case, as I have described them, I disagree.
[37] While undoubtedly at the absolute low end of the sentencing range, the circumstances here support an absolute discharge. In my view, no meaningful purpose will be served by imposing a year’s probation. In the absence of a meaningful purpose, it tends to offend the restraint component of proportionality. The sentence I impose is an absolute discharge.
[38] With the consent of the Crown, I will also sign an order that the boat, seized by the police at or around the time of Mr. Thakur’s arrest, be returned to him.
Boswell J.