COURT FILE NO.: CR-21-10000665
DATE: 20240228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
CONAL QUINN
Defendant
Milan Rupic, for the Crown
David Butt, for Conal Quinn
HEARD at Toronto: January 25^th^, 2024
NOTICE OF RESTRICTION ON PUBLICATION
Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the complainant or a witness may not be published, broadcasted, or transmitted in any manner.
Penman J.
REASONS FOR SENTENCE
Overview
[1] On March 20th, 2021, Constable Quinn and his partner responded to a radio call with respect to allegations of threatening text messages. The officers attended the complainant E.W.’s residence and spoke with her about the messages. The officers returned to the station to conduct a follow-up investigation. Constable Quinn purported to phone the complainant in front of his partner to advise her of the investigation's status and to otherwise close the investigation. This phone call never occurred, allowing Constable Quinn to attend at the complainant’s residence without any police knowledge.
[2] The next day Constable Quinn attended at E.W.’s residence and engaged in non-consensual sexual activity with the complainant, including kissing, vaginal and anal digital penetration and forced fellatio. E.W. attended Women’s College Hospital the next day on March 22nd, and it was determined that Constable Quinn’s DNA was present in swabs taken from E.W.’s left and right nipples. The complainant provided a statement to the Special Investigations Unit (SIU) on March 25, 2021.
[3] On October 27, 2023, I found Constable Quinn guilty of sexual assault. I must now determine a fit sentence.
[4] Mr. Rupic, for the Crown, submits that a sentence in the range of five to six years imprisonment is appropriate along with various ancillary orders.
[5] Mr. Butt, for Constable Quinn, submits that a sentence of three years imprisonment is the appropriate sentence.
Circumstances of the Offence
[6] I have already reviewed the factual foundation for my findings in my reasons for judgment at 2023 ONSC 6033. However, I made the following findings.
[7] Constable Quinn and his partner Constable Semple attended the complainant's residence on March 20th, 2021, in response to a threats call. They met and spoke with the complainant who provided information about the threatening messages. Constable Quinn and Constable Semple returned to the station and began a follow-up investigation. Constable Semple overheard Constable Quinn phone the person they believed to have sent the text messages and provide a warning. The officer then overheard Constable Quinn phone the complainant to update her. After the phone call, Constable Quinn advised his partner that he had updated the complainant. Constable Semple updated the occurrence with this information and the file was in effect closed. The complainant testified that she never received the phone call, and her phone records support the fact that no such call took place.
[8] I found that Constable Quinn faked the phone call and manufactured a situation where he would need to see the complainant again without the knowledge or involvement of Constable Semple. Constable Quinn attended the complainant’s apartment that afternoon to update her on the status of the investigation. In that meeting, the complainant advised him that she would be staying at a friend’s place that night. Constable Quinn told the complainant that she could phone the station if she wanted an officer to take her back upstairs if she was not feeling safe.
[9] Constable Quinn then phoned the complainant again the next morning to check on her, and to reiterate an officer could attend her apartment with her if she wished. That afternoon the complainant phoned the station to ask for an officer to accompany her back into her apartment. Constable Quinn attended. While alone in her apartment Constable Quinn hugged and kissed the complainant. The complainant did not want to hug or kiss Constable Quinn and froze, not knowing what to do. Constable Quinn pulled her into the bedroom and pushed her on the bed. He lay next to her, put his hands down her pants, and put his fingers in her vagina and anus. He then removed his fingers and licked them.
[10] Constable Quinn lifted the complainant’s shirt, removed her breasts from her bra and proceeded to suck on both of her nipples. He then unbuttoned his pants, pulled his penis out and pushed her head down motioning for her to perform oral sex on him. The officer ejaculated in her mouth. Constable Quinn was not wearing a condom.
[11] Constable Quinn phoned the complainant again the next day, March 22nd, and left a message indicating he would come and check on her later. On March 23, 2021, Constable Quinn attended the complainant’s residence, this time with another officer, purportedly to check up on her again. This occurred after the complainant had attended the hospital and was no longer answering his calls. I found that there was no more need for follow up with respect to the original radio call and that this was an attempt to remind the complainant of his status as a police officer.
Victim Impact Statement
[12] E.W. provided a victim impact statement in which she detailed the sexual assault leaving her feeling abused, powerless, and physically and sexually violated. She described her attendance at the hospital after the incident and losing her voice when asked who had assaulted her. She was afraid to say who it was given he was a police officer.
[13] E.W. described how fear, anxiety and hypervigilance became part of her everyday life. She had to move from her apartment as it no longer felt safe. When outside she wore a hat, glasses, and a mask to prevent Constable Quinn or one of his colleagues from finding her. Being near a police officer or a police station led her to a panic attack and feeling afraid. This fear left her unable to sleep.
[14] E.W. became suicidal as a result and spent six weeks in hospital. While at the hospital she engaged in “exposure therapy” to the police, to help tackle her fear of the police.
[15] All this affected E.W.'s schooling to the point where she had to withdraw from her semester, setting her a year behind and resulting in a loss of funding for school. She has also had to engage the help of a therapist to deal with the trauma of the sexual assault, which she is working on to this day.
[16] E.W. described how Constable Quinn’s actions have profoundly affected her emotionally and financially and she is concerned about her education and future career prospects. Constable Quinn destroyed E.W.’s sense of safety in the world.
Circumstances of the Offender
[17] Constable Quinn is fifty-four years old, has no criminal record and has been a police officer for twenty-three years. A summary of his police career is outlined in my reasons for judgment at para 20 and 21. I said then and repeat now that there is no doubt that Constable Quinn has had an exemplary career up until this point.
[18] Constable Quinn has been seeing a clinical psychologist, Dr. Jennifer Walsh, since April of 2021, and a letter to that effect was filed at the hearing. Through that therapy, I understand that Constable Quinn has struggled with issues relating to his police work. He was ultimately diagnosed with posttraumatic stress disorder, attributable to numerous traumatic exposures as a police officer. There was no further reference to these issues.
[19] According to Dr. Walsh, Constable Quinn continues to be in her care and has been fully engaged in the treatment process. He was described as proactive between sessions in seeking out additional resources to help work towards accountability and repairing his relationships. Dr. Walsh expects going forward that he will be just as committed to the therapeutic process.
[20] Letters of support were filed on Constable Quinn’s behalf. He is described as someone with “integrity and compassion”. Another friend described Constable Quinn as someone who acts with “integrity, loyalty, dedication to his family and close friends, and a very high level of commitment to his service in uniform.” A colleague described Constable Quinn as a “hard-working, loyal, ethical individual…”.
[21] The letters state that Constable Quinn has profound regret for his actions and that he is aware of the impact they have had on his family and community. I understand that Constable Quinn has lost the support of his family and that he will lose his employment as a police officer.
Breach of Trust
[22] It is not disputed in this case that there was a breach of trust given that Constable Quinn was an on-duty police officer who used his position to facilitate the offence. The issue is where the breach of trust puts this offence in terms of sentence range.
[23] Police officers are sworn to uphold the law and as such, “Powers conferred on police require that they be held to a high standard of accountability.”: see R. v. Doering 2020 ONSC 5618 at para 24. Flowing from this is the recognition that crimes committed by police officers represent a breach of the public trust.
[24] In cases where a police officer is being sentenced, the sentence imposed must be more severe than the ordinary person who commits the same offence. It is well established that:
The commission of offences by police 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.: R. v. Schertzer 2015 ONCA 259 at para 133 quoting R. v. Cusack (1978) 41 C.C.C. (2d) (289) (N.S.S.C.)
[25] The principles of denunciation and general deterrence become magnified in the sentencing of police officers.: see R. v. Forcillo 2018 ONCA 402 at para 198-199; R v. Ferguson 2008 SCC 6 at para 28, Doering at para 25.
[26] As with all offences, crimes by police officers cover a broad range and have varying degrees of moral blameworthiness.: Doering para 30. On the one hand are crimes where there is a ‘deliberate leap’ into criminality such as an officer who decides to sell drugs or steal money. Conversely, moral blameworthiness is lower when an officer commits a criminal offence incidental to the discharge of a duty related to public safety. For example, in the case of R. v. Porto 2017 ONSC 733, an officer was convicted of dangerous driving when he raced to the scene of a 911 call leading to a collision causing bodily harm. Notwithstanding the breach of public trust, the court found his moral culpability was mitigated because his motivation in driving so fast was the protection of the public.
[27] While Constable Quinn did not leap into criminality per se, Constable Quinn’s conduct did not occur incidentally to his being on duty either, nor was it associated with acting in the interests of public safety or protection. Constable Quinn used his status as a police officer to present himself as the friendly neighborhood police officer who could be trusted. The situation was engineered such that Constable Quinn would have contact with the complainant again for the purpose of engaging in sexual activity. I find Constable Quinn’s moral blameworthiness high.
What is the Appropriate Sentence for Sexual Assault involving Penetration?
[28] As a starting point, the Court of Appeal in the case of R. v. A.J.K. 2022 ONCA 487 at para 77 has stated that in cases of forced penetration of another person, absent a highly mitigating factor, an appropriate sentence would be in the range of three to five years. While there is no doubt sentencing is a highly individualized process, there will be circumstances where a departure either above or below the range, may be appropriate. This range recognizes the serious harm involved in sexual assaults and for sentences to reflect that harm.
[29] Courts have also recently made clear that penetration is no less serious if it was by means of a finger as opposed to a penis. In R. v. Stuckless 2019 ONCA 504 Huscroft J.A., made the point that the harm cannot be discounted because it involves sexual activity other than intercourse. A violation of a victim’s sexual integrity is not diminished simply because the penetration was digital as opposed to penile.: see paras 68 and 69. Pepall J.A emphasized the same point in her concurring judgement at paras 124 and 125.
[30] These pronouncements were expressly approved of in R. v. Friesen 2020 SCC 9 at para 146. Although the court in Friesen was dealing with child complainants, these principles also apply more broadly to sexual offences involving adults.: see R. v. Brown 2020 ONCA 657 at para 59.
[31] For cases dealing specifically with police officers convicted of sexual assault, I agree that these cases are rare and the ones that do exist suggest that there is a wide range of appropriate sentences and in some cases, there has been a departure from the range.
[32] The defence has referred to the case of R. v. Bradley 2008 ONCA 179. In that case the accused was a police officer who had abused his position as mentor to a young woman who hoped to become a police officer. The Court in reducing the sentence from four years to three years found that while the impact on the complainant was devastating, there was no violence other than what was inherent in the offence itself. The offence had occurred many years before, and he had an otherwise positive character. The case involved forced vaginal and anal intercourse. Although at the low end three years was found to be a fit sentence.: see para18.
[33] The Crown argued that the police officer in Bradley was technically off duty, and that the court considered the passage of time to be a mitigating factor. Most importantly the Crown points out that the decision is from 2008, prior to the Supreme Court’s decision in Friesen acknowledging the need for increased appreciation of the harm caused by these types of offences.
[34] The defence also relied on the case of R. v. Snelgrove 2021 NLSC 149 where a police officer sexually assaulted an intoxicated woman who was looking for assistance in getting home. After taking her home, he sexually assaulted her including fellatio, and vaginal and anal penile penetration. He received a sentence of four years for facts which it was argued were more egregious than the facts we have in this case.
[35] Counsel for Constable Quinn also referred to the cases of R. v. Greenhalgh 2012 BCCA 236 and R. v. Bracken 2005 SKPC 64 which are distinguishable given the underlying facts, specifically touching over the clothes.
[36] In R. v Sandhu 2015 ONSC 1679, an on-duty police officer in plain clothes but with his badge and armed, attended a massage parlor for a compliance check. He ordered an employee to perform fellatio on him and ejaculated in her mouth. The Crown proceeded summarily, and his sentence of fifteen months was upheld on appeal.
[37] Crown counsel argued that R. v. Thomas 2023 ONCJ 426 most resembles the case before this court. In that case a prison guard used his position to sexually assault an inmate at Vanier Centre for Women. He pulled her into a washroom where there were no cameras and attempted to have her perform fellatio on him. When she refused, he forced vaginal intercourse. Also, on that day he served her with a meal and provided her methadone treatment, facts which were found to highlight her unique vulnerability generally and vis a vis the accused. He was forty-four years old, had no criminal record and was sentenced to six and half years.
[38] The trial judge found that the offender had a high degree of moral blameworthiness given the victim was completely subject to the control and direction of the accused whose position as a correctional officer allowed him “unique insight into her vulnerabilities”.: see paras 26 and 27. I understand that case is currently under appeal.
[39] Ultimately the sentence imposed must reflect the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of the case.: R. v. Lacasse 2015 SCC 64 at para 58.
Aggravating Factors
[40] There are several aggravating factors in this case. First and foremost is Constable Quinn being an on-duty police officer who used his position to facilitate the offence. In addition, at the time of the offence Constable Quinn was in uniform and armed with his police issue firearm.
[41] Next is the element of planning. Planning in the commission of a sexual assault has been found to be an aggravating factor for the purposes of sentencing.: see R. v. D.B. 2020 ONCA 512 and R. v. S.A. 2014 ONCA 266. Mr. Rupic for the Crown argues that in the context of this case, the evidence of planning is an aggravating factor as Constable Quinn used deception and “planting the seed” in the complainant’s mind to contact him if she was not feeling safe, in the hopes of further contact. Mr. Butt for Constable Quinn argued that there was zero evidence of planning and specifically relied on the fact that while there was a “fake” phone call that resulted in a meeting, nothing happened in that first encounter. Additionally, there was nothing between the first and second private meetings that suggested any kind of planning.
[42] However, as I found in my reasons at paras 39-44, Constable Quinn intentionally created situations where he could attend at the complainant's residence to speak with her in person and alone. This included phone calls after the first private meeting and suggesting she could call if she did not feel safe. While I do not believe he was planning on committing a sexual assault, he engineered occasions outside of his police duties where he could have contact with the complainant for the purpose of engaging in sexual activity. This constitutes an element of planning and while not on the same level as the cases referred to above, is still an aggravating factor.
[43] Third, the somewhat prolonged sequence of events commencing with the kissing and hugging in the living room to the kitchen, and then finally the acts of digital vaginal and anal penetration and forced fellatio in the bedroom. The fellatio was unprotected and continued to the point of ejaculation. The Court of Appeal in R. v. Alkhalil 2023 ONCA 585 upheld the finding of the trial judge at R. v. Alkhalil, Unreported 2021 ONSC, that unprotected forced fellatio to ejaculation is a “serious sexual indignity” and constitutes an aggravating factor.: see para 7.
[44] Fourth, the devastating impact this offence has had on the complainant as outlined in her Victim Impact Statement is a significant aggravating factor. I have not considered her comments about the process of being cross-examined. There was nothing wrong or inappropriate about the cross-examination and Constable Quinn was entitled to plead not guilty and have the allegations tested in court.
[45] Finally, E.W. displayed vulnerabilities that were exploited by Constable Quinn. When the officers first attended the radio call, he became aware of her drug history with her ex-boyfriend and the suggestion that she had been manipulated and taken advantage of in that situation. It would have been obvious to Constable Quinn that the complainant was a vulnerable person. I do not find, however, that this factor reaches the level as found in Thomas.
Mitigating Factors
[46] There are several mitigating factors. First, Constable Quinn’s lack of criminal record and exemplary police career which I have already referenced. I appreciate that offences involving breach of trust inevitably involve someone who has achieved a certain status in life, paving the way for relationships of trust. However, in this case Constable Quinn’s career appears to have been of real success and I credit him for those accomplishments.
[47] Second, Constable Quinn does appear to have some remorse. Several letters were filed which reference Constable Quinn having “profound regret” and that he is “deeply remorseful” for the pain that he has caused. Again, I appreciate that Constable Quinn’s regret is confined to the chain of events that has led to the pain he has caused the people in his life and his community. However, I am persuaded that there is some remorse which does constitute a mitigating factor.
[48] Third, the punishment that Constable Quinn has already faced and continues to face. I accept that Constable Quinn has been ostracized from friends and colleagues. I understand that Constable Quinn has lost his family, although I do not have a lot of details about this. I have also been made aware that Constable Quinn will lose his job as a police officer. There is no doubt that Constable Quinn brought on many of these consequences himself, and they do not supersede the need for denunciation and deterrence, but I accept that they constitute a form of punishment that I must consider in crafting an appropriate sentence.: R. v. Cook 2010 ONSC 5016 at para 42.
[49] I also accept that Constable Quinn’s time in custody is likely to be more difficult than an ordinary inmate, whether it’s because of where he is housed, restricted amenities and/or psychological stressors.: see Cook at para 43.
[50] Fourth, Constable Quinn has voluntarily engaged in counselling and appears committed to working through whatever issues led him to where he is today.
Appropriate Sentence
[51] The Crown has argued that a period of five to six years is appropriate given the serious breach of trust, the use of deception and planning for the purposes of pursuing sexual gratification, and the harm to the bodily integrity of the victim through the acts themselves.
[52] A sentence of five to six years would be at the high end to outside the range for this type of sexual assault.: see A.J.K. While Constable Quinn’s moral blameworthiness is high, I do not find that the factual circumstances of this case warrant a sentence outside the range. In my view an appropriate sentence is four years.
[53] There is no question that this was a grave breach of trust involving the misuse of Constable Quinn's position as a police officer. Constable Quinn took advantage of a vulnerable woman and had her engage in sexual activity that was a serious violation of her bodily integrity. The impact this offence has had on the complainant where among other issues, she had to spend six weeks in hospital having come to the point of contemplating suicide, cannot be overstated.
[54] I balance that against Constable Quinn’s many years of good character, both personally and professionally. I have taken into account his remorse, the consequences this has had and will continue to have on his life, and his more difficult time in custody.
Disposition
[55] Constable Quinn will be sentenced to four years in custody. In addition, there will be the following orders:
a. Section 487.051(1) DNA Order;
b. Pursuant to section 490.012(3) and section 490.013(2) a Sex Offender Information Registry Act order for twenty years.
c. An order under Section109(1)(2) prohibiting possession of firearms and other weapons as described in the act for ten years, and
d. A section 743.21(1) order prohibiting communication directly or indirectly with the complainant for the duration of his custodial sentence.
___________________________ Penman J.
Released: February 28, 2024
COURT FILE NO.: CR-21-10000665
DATE: 20240228
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
CONAL QUINN
REASONS FOR JUDGMENT
Justice Penman
Released: February 28, 2024