COURT FILE NO.: CR-00000181

DATE: 20220623

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

BINDO SHOWAN

Jason Nicol

For the Crown

Philip Wright

for the accused

HEARD: June 7, 2022

G. ROBERTS J.:

OVERVIEW

[1] Bindo Showan stands charged that between February 1, 2019 and January 14, 2021 he committed the offences of breach of trust contrary to s.122 of the Criminal Code, and corruptly accepting a benefit contrary to s.426(1)(a) of the Criminal Code. The charges flowed from a lengthy investigation that included surveillance and a wiretap authorization in which Mr. Showan was one of a number of named parties.

[2] Mr. Showan pleaded guilty to breach of trust contrary to s. 122 of the Criminal Code before me on June 7, 2022. Counsel agree that a non-custodial disposition is appropriate in the particular circumstances of this case, but differ on what it should be. The Crown submitted that a suspended sentence is required to provide for general deterrence and denunciation. Mr. Showan (through his lawyer) submits that a conditional discharge will suffice.

[3] Mr. Showan has an exemplary work history. The charges have had a devastating effect on his career and his personal life. The Crown acknowledges that he will never be back before the courts; rehabilitation and specific deterrence are simply not in play. There is no dispute that the issue in this sentencing is what is required to adequately provide for general deterrence and denunciation.

CIRCUMSTANCES OF THE OFFENCE

[4] The towing industry in Toronto is lucrative and competitive. Particularly lucrative is a tow which also involves impounding the vehicle. One example of when this occurs is after a stunt driving charge is laid under s.172 of the Highway Traffic Act. Stunt driving can be charged when a driver is travelling in excess of 50 km over the speed limit. In addition to fines, the charge results in the driver's vehicle being impounded for 7 days.

[5] During the time frame of the indictment, and for some years before, the OPP towing policy mandated that the selection of towing services "shall generally be the responsibility of the vehicle operator/owner/responsible representative at the scene". If the owner did not have a preference, by historical convention the officer was to select the "first available tow". The officer could also intervene to select the first available tow if the circumstances required an expedited response.

[6] The "first available tow" system was intended to ensure a fair and equitable distribution of towing referrals, as well as to limit perceived favoritism amongst the at least 90 tow companies active in the OPP 407 Detachment area. But it also created a very competitive environment. Tow truck companies developed different strategies to be first on scene such as watching OPP 407 officers arrive and following them to enforcement locations; identifying enforcement patterns and staging their tow trucks at "fishing holes".

[7] Tow truck operators complained that some OPP officers were showing preferential treatment to certain tow truck companies. OPP 407 enforcement officers, including Constable Showan, were warned not to show preferential treatment, including not to permit tow truck drivers to stage on the highway when traffic enforcement was being conducted:

• In August of 2018, and again in April of 2019, Staff Sargeant Chuck Kaizer, the OPP 407 Detachment Commander, cautioned officers in the 407 Detachment about fair towing selection after complaints by the public and by tow companies.

• Kim Cheesemen, a Sergeant at the 407 Detachment who supervised Mr. Showan in 2017, cautioned him at least three times about tow favoritism.

[8] The investigation in this case showed that between January 1 and November 30, 2019, 407 detachment officers laid a total of 819 s.172 charges, all of which required a tow plus 7-day vehicle impoundment. Eighty-nine percent of the charges were processed by four 407 detachment members, one of them being Mr. Showan. Most (72 %) of the tows flowing from the s.172 charges laid by Mr. Showan between January 1 and November 30, 2019 went to companies related to Sutheshkumar Sithambarpillay (Steve Pillay): Steve's Towing and CCC Towing. A significant number of tows (20 %) also went a company called Brothers. Tows flowing to other companies were negligible. The exact numbers are set out in the top chart at page 4 of the agreed statement of facts (exhibit 1).

[9] Between October 14, 2019 and July 27, 2020, Mr. Pillay's tow companies profited by approximately $289,000.75 off the s.172 vehicle seizures conducted by Mr. Showan.

[10] Since joining the 407 Detachment in 2016, the majority of Mr. Showan's s.172 tows were conducted by either Steve's Towing or CCC Towing, resulting in at least $500,000.00 worth of towing business to Mr. Pillay.

[11] Physical surveillance and wiretap intercepts confirmed that Mr. Showan had a relationship with Sutheshkumar Sithambarpillay (Steve Pillay). They would regularly communicate via cell phone, including for the purpose of ensuring that Mr. Pillay's tow trucks would be placed in strategic locations so that they would be able to first attend a tow scene. This staged enforcement effectively circumvented the "first available tow" practice.

[12] Surveillance was compromised on April 14, 2020 when Mr. Showan saw surveillance team members while driving home from work. The number of tows flowing from s.172 charges laid by Mr. Showan declined precipitously after COVID-19 restrictions came into force in March of 2020, but declined further after April 14, 2020, as shown in the chart at page 8 of the agreed statement of facts (exhibit 1). Further, after this date, intercepted communications between Mr. Showan and Mr. Pillay did not involve discussion of planned traffic enforcement or towing issues.

CIRCUMSTANCES OF THE OFFENDER

[13] Mr. Showan is a hard-working and talented person. Since arriving in Canada as a young man, he has been studying or working. He has an excellent service record as a police officer.

[14] Mr. Showan is 59 years old. He was raised and educated in Kenya. He immigrated to Canada in 1988 when he was 25 years old. He is proficient five languages: English, Swahili, Hindi, Punjabi, and Gujarati. From 1989 to 1992 he attended George Brown College where he obtained a diploma in child and youth work. He worked as a child and youth worker in group homes, and then with young offenders in open custody.

[15] In 2001 Mr. Showan joined the OPP. He initially worked at Keele St. and Highway 401. In August of 2004 he started with the anti-terrorism section. In 2009, he went undercover to prepare for the G20. He was required to stay deep undercover for long periods of time, living in an apartment by himself, spending time with targets rather than his own family, including over holidays. The work was difficult and dangerous. Mr. Showan persevered even when he came under suspicion at one point. According to press reports provided in the defence book of documents (exhibit 2), his work lay at the foundation of numerous charges. His work reviews during this time period are stellar. He left in June of 2010 and assisted with disclosure. In 2014 he was seconded to the RCMP where he assisted with source development including in relation to terrorism and drug cartels. He has taught at police college about handling sources. His secondment ended in August of 2016, at which time he began working at the 407 Detachment, which is responsible for conducting general patrol and traffic enforcement.

[16] The first portion of the defence book of documents (exhibit 2) includes Mr. Showan's performance reviews, a list of courses he attended and instructed, and a citation for bravery, dated November 16, 2017, in relation to his attempt to rescue someone from a burning car. The performance reviews are all good, but are particularly impressive when he was doing undercover work. The second portion of the book contains media coverage in relation to Mr. Showan's undercover work during the G20, including his important role in a significant number of charges, and his treatment on-line when his cover was blown. The third portion provides some medical records which, among other things, document Mr. Showan's diagnosis of PTSD and general anxiety disorder, which defence counsel submits result from his police work and the current charges. The fourth section contains seven letters of reference. They are all from current or former colleagues in the police service attesting to Mr. Showan's skill and professionalism as a police officer. The fifth and final section provides a pay scale, and letters from the Bank of Nova Scotia and CIBC terminating their relationship with Mr. Showan.

[17] Prior to being sentenced, Mr. Showan apologized to his colleagues, family, friends, the court, and all the people who have trusted him. He explained that the charges have had a profound effect on him, his mental health, his relationships. He was so embarrassed and ashamed it took him a year before he went back into the community.

LEGAL PARAMETERS

[18] Breach of trust by a public officer, contrary to s.122 of the Criminal Code, is a hybrid offence. Where prosecuted by indictment, as it is here, the maximum sentence is five years. It carries no minimum sentence.

[19] Each side took me through a number of cases, but both counsel were frank that there is no case on point.

PRINCIPLES OF SENTENCING

[20] The fundamental purpose and principles of sentencing are now largely codified in section 718 of the Criminal Code. They are lengthy and detailed and well-established. I have them firmly in mind but will not recite them here.

[21] A number of common law principles are also in play in this case, most importantly the collateral consequences the charges and sentence will have on Mr. Showan's career as a police officer. Collateral consequences are not necessarily "aggravating" or "mitigating" factors, because they do not relate to the gravity of the offence or the degree of responsibility of the offender, but they are relevant because they increase the impact of an offence or sentence. The sentencing principles of individualization and parity require that this impact be considered in order to craft a fit sentence.

[22] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence, but they must relate to the offence and the circumstances of the offender. They include "any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender", and can encompass "physical, emotional, social, or financial consequences". Collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. The fundamental principle of proportionality must prevail in every case: R. v. Suter, 2018 SCC 34 at 46-49.

[23] As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence and offender. In all instances, as s. 718.1 expressly notes, the "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

AGGRAVATING & MITIGATING CIRCUMSTANCES

[24] There are a number of significant mitigating circumstances in this case, perhaps most importantly the guilty plea. Just how much mitigation should be accorded to a guilty plea depends on the particular circumstances of a case. The guilty plea in this case is not particularly timely - charges were laid about a year and a half ago. Nonetheless the Crown submits that it should be accorded extra weight. I agree. A trial would take a significant amount of court time during a period when court time is at a premium as the criminal justice system scrambles to catch up to the delays caused by COVID-19. As a result, Mr. Showan's guilty plea has a very significant mitigating effect on sentence.

[25] Mr. Showan has a pro-social and productive background. In particular, he has an excellent record of service as a police officer (apart from the instant offence).

[26] There are also a number of significant aggravating circumstances, perhaps first and foremost the inherent seriousness of a breach of trust by a police officer. Police officers hold special positions of trust and responsibility in society and in the criminal justice system. They are expected to scrupulously uphold its values. When a police officer commits any criminal offence, it erodes the public's confidence and faith in the police specifically and the administration of justice generally. A breach of trust by a police officer is particularly serious.

[27] This particular breach of trust was not a momentary lapse, or a matter of criminal negligence. Rather it involved planning and deliberation, including taking steps to avoid discovery, as evidenced by some of the intercepted telephone calls, such as one of the calls on April 8, 2020 when Mr. Showan instructed Mr. Pillay not to "sit" at a specific location because someone will complain.

[28] It was committed while Mr. Showan was on duty. Indeed, it involved him failing to discharge his duty in accordance with principles specifically intended to promote fairness.

[29] It was committed over an extended period of time - from 2016 when Mr. Showan first began working for the 407 enforcement detachment right up to April of 2020 when surveillance was compromised.

[30] It was committed in the context of both general problems with the towing industry in Toronto, and specific concerns about police favoritism being shown towards particular towing companies. The fact that this was a highly competitive industry rife with problems should have resulted in the police behaving with scrupulous care. Rather than being part of the solution, however, Mr. Showan became part of the problem. To make matters worse, he did so in the face of specific and repeated warnings not to show favoritism to any tow truck companies.

COLLATERAL CONSEQUENCES

[31] The criminal charges in this case, together with similar charges against a number of other police officers, have been the subject of publicity. Defence counsel collected related news articles into a "Book of Media Documents of Bindo Showan" which was made exhibit 3 on the sentencing. This public shame is a collateral consequence which must be considered in crafting a fit sentence.

[32] The criminal charges in this case have also had an effect on Mr. Showan's career as a police officer. In February of 2021, after being charged in January 2021, Mr. Showan was suspended with pay. He faces discipline proceedings once the criminal charges have been dealt with. I understand that at a minimum he will lose seniority, and the associated pay entitlement. He could lose his job altogether. The effect of the charge and sentence on Mr. Showan's career is a significant collateral consequence that must be considered in order to craft a fit sentence in Mr. Showan's particular circumstances. However, in so far as the employment consequence flows so inevitably from the nature of the offence its "role as a mitigating factor is greatly diminished": Suter, at para.49.

WHAT IS A FIT SENTENCE IN ALL THE CIRCUMSTANCES?

[33] Section 730(1) of the Criminal Code provides that, as long as there is no minimum sentence, a court may discharge an accused where "it considers it to be in the best interests of the accused and not contrary to the public interest".

[34] There is no question that a discharge is in Mr. Showan's best interest. A discharge would minimize the significant collateral consequences that Mr. Showan is already suffering as a result of the charges being laid. In addition, the Crown fairly concedes that Mr. Showan has a pro-social background and specific deterrence and rehabilitation are not required. As the Crown put it, Mr. Showan is not going to be before the court again.

[35] The real question is whether a discharge is "not contrary to the public interest". This turns on whether a discharge can adequately provide for general deterrence and denunciation in the circumstances of this case.

[36] Defence counsel argues that the absence of any personal gain makes the offence much less serious. I disagree. The fact that there is no evidence of personal gain means that the Crown has not proved an aggravating factor. It does not mean that the defence has proved there was no personal gain. There is simply no evidence before me one way or the other. As Justice Doherty explained in R. v. Smickle, 2013 ONCA 678 at para.18:

If the Crown relies on a fact as aggravating on sentencing, and the fact is not admitted, the Crown must prove that fact beyond a reasonable doubt. However, the failure to prove an alleged aggravating fact beyond a reasonable doubt does not permit the trial judge to assume a version of facts most favourable to an accused. If the defence relies on mitigating facts and those facts are not conceded by the Crown, the accused must establish those facts on the balance of probabilities: Criminal Code, s. 724(3); R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.), at para. 18; and R. v. Holt (1983), 1983 CanLII 3521 (ON CA), 4 C.C.C. (3d) 32 (Ont. C.A.), at pp. 51 -52, leave to appeal to S.C.C. refused: [1983] S.C.C.A. No. 474 (S.C.C.).

[37] Defence counsel points to Mr. Showan's exemplary record as a police officer, as supported in the defence book of documents described above (exhibit 2), including the impressive work reviews and letters of reference, to argue that the significant consequences of being caught are enough to provide for general deterrence. I disagree. While the reviews and reference letters are impressive, and show that specific deterrence needs no emphasis, nor is there any need for rehabilitation, I do not believe they can diminish the need for general deterrence and denunciation. First, Mr. Showan's position as police officer, and the powers that come with the position, mean that he must be held to a higher standard of accountability, and "the principles of denunciation and general deterrence become magnified": R. v. Doering, 2020 ONSC 5618 at para 24 (and the cases cited in that paragraph). His particularly good background does not diminish the importance of this approach. To the contrary, if our best officers can be corrupted, that strikes me as a reason to emphasize the importance of general deterrence and denunciation. Second, as a matter of general principle, a good background is of limited benefit on sentence when it enables the commission of the offence. Third, general deterrence and denunciation are particularly relevant to offences that might be committed by otherwise or ordinarily law-abiding people: Lacasse, at para.73. I agree with the Crown that police officers are an ordinarily law-abiding group one could reasonably expect to be particularly sensitive to criminal sentences.

[38] The significant collateral consequences at play in this case have a mitigating effect on sentence, but they cannot be over-emphasized. Nor can they provide for, or substitute for, general deterrence or denunciation. As the Court of Appeal recently explained in R. v. Joseph, 2020 ONCA 733 at para.120, general deterrence "has to do with the effect a sentence will have on others, not with whether a particular sentence would have a more significant effect on a specific offender". In addition:

116. ….[U]sing publicity to satisfy the need for general deterrence would undermine the general deterrence sentencing objective, since general deterrence is promoted through the publication of a deterrent criminal sanction. If the sentence is reduced because of pretrial publicity, the sentence will be less effective in achieving general deterrence.

117 Moreover, it will generally be unrealistic to ascribe general deterrent properties to the collateral consequences experienced by a specific offender. It is one thing to anticipate that the pattern of sentences imposed on others for a kind of criminal conduct will demonstrate to potential offenders that the cost of that kind of criminal conduct is too high. However, it is a bridge too far to anticipate that others will somehow learn of and consider the collateral consequences on another when deciding whether to engage in such conduct.

[39] I appreciate that in R. v. Gray (2000), 2000 CanLII 22830 (ON SC), 39 C.R. (5th) 185 (Ont.Sup.Ct.) Justice Hill accepted a joint submission for a discharge following a guilty plea to one count of breach of trust by a public officer contrary to s.122 of the Criminal Code. But a joint submission is not a valid comparator for parity or fitness purposes as it is subject to special considerations: R. v. Buffone, 2021 ONCA 825 at paras.29-31. Even it were, however, the facts of Gray are very different than the instant case. Mr. Gray took advantage of information he learned through his position as "pay-duty co-ordinator" about possible opportunities to further his own private security business. While a serious conflict of interest, his breach did not involve the compromise of his on-duty work. In this case, however, Mr. Showan compromised his obligation to treat tow companies equally by giving preferential treatment to a particular tow operator. Moreover, he did this in the face of specific concerns about unfair treatment in the industry, and repeated and specific warnings to be sure to follow the rules in place to promote fairness. His behaviour impairs the reputation of the force and the wider criminal justice system. I accept the Crown submission that instead of seeking to treat tow companies fairly, which was particularly important given the state of the industry, he did the opposite, and effectively descended into the fray contributing to the worst aspects of the towing industry. Rather than discharging his public duty to be part of the solution, he became part of the problem.

[40] Living in Canada, and Toronto in particular, we are fortunate to have a highly trained, professional police force. In order to maintain its reputation as world class police force, it is essential to treat an on-duty breach of trust, particularly a deliberate one, compromising a duty of fair treatment, repeated over an extended period of time, very seriously. A discharge in the circumstances of this case would be contrary to the public interest. I believe that a suspended sentence is a very lenient sentence in the circumstances of this case, the absolute minimum that can adequately provide for general deterrence and denunciation. But for the guilty plea, which I agree should be accorded extra weight in the particular circumstances of this case, the sentence would be higher.

[41] I accept the Crown submission that a suspended sentence be imposed pursuant to s.731(1)(a), and that Mr. Showan be subject to the minimum statutory conditions for one year. The only additional condition will be that Mr. Showan is to have no contact directly or indirectly with Sutheshkumar Sithambarpillay (Steve Pillay) or any of his employees.

G. ROBERTS J.

RELEASED: June 23, 2022

COURT FILE NO.: CR-00000181

DATE: 20220623

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

BINDO SHOWAN

REASONS FOR SENTENCING

G. ROBERTS J.

RELEASED: June 23, 2022