Court File and Parties
COURT FILE NO.: CR-22-00000004-0000 DATE: July 3, 2024 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: R. v. Jeffrey Smith
BEFORE: Justice Patrick Hurley
COUNSEL: Ian Bulmer, for the Crown Leo Kinahan, for the Defendant
HEARD: March 28 and May 7, 2024
Endorsement
[1] Following a trial, I found Jeffrey Smith not guilty of assault causing bodily harm but guilty of the lesser and included offence of assault. I heard sentencing submissions on March 28, 2024 and remanded him to May 7 for decision and imposition of the sentence.
[2] On May 7, Mr. Bulmer filed a letter from Roxanne Brown, the Area Manager for the Belleville Probation and Parole office addressed to me which stated: “At this time, I am writing to advise you that we must withdraw this report from the court due to a possible conflict of interest casting doubt on the integrity of the report. We are currently investigating this matter.”
[3] The presentence report (“PSR”) had been prepared by Ryan Ganga and was made an exhibit at the sentencing hearing on March 28. Counsel agreed that it could not be withdrawn based solely on Ms. Brown’s letter.
[4] They also agreed that, rather than adjourning the sentencing to make further inquiries of Ms. Brown to determine why she was requesting to withdraw the PSR, I should order a second PSR and I did.
[5] This PSR was prepared by Beena Mann, a probation officer with the Northumberland Probation and Parole office. I received it on June 4.
[6] The contents of the two PSRs are not identical but there are no material differences in them which would impact the sentence. Neither counsel submitted that I should disregard the PSR prepared by Mr. Ganga. There was nothing in his report which would, on its face, cause me to question the objectivity of it or put into question its verity. As a result, my decision is based on a consideration of all the evidence presented at the sentencing hearing on March 28, the PSR prepared by Ms. Mann, the submissions of counsel and the governing jurisprudence.
[7] The Crown submits that a fit and proper sentence would be a conditional sentence of 30-60 days on house arrest terms. The defence is proposing a conditional discharge.
The circumstances of the offence
[8] I reviewed the facts at length in my trial decision (reported at 2024 ONSC 169). I do not intend to recite much of the evidence again but there are certain facts which I will identify here because of their particular relevance to sentence in this case.
[9] My central finding was that, because Constable Fyke did not have reasonable and probable grounds to arrest Mr. Baptiste as a party to the offence of theft, Mr. Smith did not have the lawful authority to arrest Mr. Baptiste and, therefore, any intentional application of force by him against Mr. Baptiste constituted an assault.
[10] I did not expressly state whether Mr. Smith had the necessary subjective grounds for arrest because that was not necessary to decide for the purposes of trial. As I will explain later in these reasons, this issue does bear on sentence because it goes to Mr. Smith’s moral blameworthiness. I find that he did have subjective grounds for the arrest, in that he honestly believed that he had grounds to arrest Mr. Baptiste based on what Constable Fyke had told him.
[11] Mr. Baptiste is Indigenous. The Crown, rightly, has submitted that his Indigenous status is a relevant consideration in sentencing because of the Court of Appeal’s decision in R. v. Theriault, 2021 ONCA 517. Again, I will review this issue later in my decision. But, to be clear, there was no evidence that Mr. Smith’s actions were the result of any racial animus towards Mr. Baptiste or his companions or that he engaged in any type of racial profiling on the date in question. The Crown never suggested during the trial that Mr. Smith had any such motivation.
[12] Because I found that Mr. Smith did not have recourse to s. 25 of the Criminal Code, I did not have to consider whether the force used by him was unnecessary, disproportionate or unreasonable. However, as I indicated in my reasons, the Crown’s position at trial was that, if s. 25 did apply to Mr. Smith, the force used by him during the arrest was not excessive.
[13] There are other facts that I will refer to when addressing specific submissions made by counsel.
Impact on the victim
[14] In his victim impact statement, Mr. Baptiste wrote that the assault has had a tremendous impact on him. He has experienced many adverse physical and mental consequences as a result of it.
[15] Mr. Baptiste will not leave the Tyendinaga Mohawk Territory and go into Belleville alone now. He believes that he was targeted and profiled by the police officers that night. He described himself as a leader who would assist others in their troubles or difficulties before the assault. He was in charge of his business operations and was ambitious. Now, he finds that he lacks motivation and does not care about the business, letting others deal with it.
[16] He has experienced a loss of dignity, pride and self-respect. His health has gone downhill. He suffers from anxiety and depression and has trouble sleeping.
[17] He fears for his security and that of others, stating:
When the SIU laid charges against Constables Fyke and Smith, I felt that I was walking around with a target on my back. Now that Constable Smith has been convicted of assaulting me, I feel that the target is even bigger.
I am also afraid for other members of my family and how they might meet up with Officer Smith and whether something will happen because of what I experienced in the Taco Bell. But this has never been about me. It’s about making life safer for my nephews and nieces and others from the Tyendinaga Mohawk Territory. I don’t want this to happen to anyone else.
[18] Mr. Baptiste made similar comments to Mr. Ganga and Ms. Mann. His partner, Kayla McFadden, accompanied Mr. Baptiste to his meeting with Ms. Mann. She told Ms. Mann that the criminal case had also adversely affected her.
[19] Mr. Baptiste and Stan Jolly, who was described as Mr. Baptiste’s “support person” and also attended the meeting with Ms. Mann, expressed concerns about the number of police officers who have attended court, stating that their presence was “intimidating” and that members of the Tyendinaga Mohawk Community have declined to come to court over fears of harassment by the police. Mr. Baptiste told Ms. Mann that there have been 20-30 uniformed officers in the courtroom.
[20] All members of the public are entitled to attend court. The Supreme Court of Canada has repeatedly affirmed that the open court principle is a pillar of our free and democratic society. Under this principle, every person, as a general rule, has the right to access the courts, to attend hearings, to consult court records and to report on their content: Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21, at paras.27-28.
[21] There have been many people in the courtroom during these proceedings. I do not know how many were police officers but I assume there were several colleagues of Mr. Smith in the courtroom. The only people in uniform that I directly observed were the court security officers. If there were others, I did not take note of them. There were not 20-30 people in uniform in the courtroom either during the trial or at the sentencing hearing.
[22] There was no conduct inside the courtroom by anyone that appeared to be either intimidating or harassing nor did any person or counsel bring any such concern to my attention. If I was made aware of any such conduct, I would have immediately taken steps to end it. I accept that Mr. Baptiste and Mr. Jolly may have the subjective perception they recounted to Ms. Mann but based on my experience in this courtroom, there is no objective basis for it.
Circumstances of the offender
[23] Mr. Smith is 45 years old and married with two young children. He has lived in Belleville since 2007. He grew up in Caledonia in a working-class family that was loving and supportive. He has two siblings. After finishing high school, he attended McMaster University where he graduated with a degree in sociology. He then obtained a master’s degree in childhood education at an American university. He taught elementary school until 2013 when he decided to change careers and become a police officer. He has been with the Belleville Police Service since 2014. He currently holds the rank of First Class Constable and is a member of the Emergency Response Team.
[24] Both PSRs are quite positive. The authors described Mr. Smith as cooperative, polite and forthcoming. Mr. Ganga stated that Mr. Smith accepted responsibility for the offence, indicating that he understood the consequences it has had on all those involved including the victim Mr. Baptiste and his family, his employer, and his own family. Mr. Smith told Ms. Mann that he has learned from this experience, telling her: “I am here because of my actions.” In speaking of his allocution at the hearing on March 28, he stated: “I addressed the family and apologized. I genuinely feel this way.”
[25] Mr. Smith’s counsel filed his employment appraisal reports, starting with his probationary period up to 2022. He has no disciplinary history. The reports are uniformly good, his supervisors finding that he either met or exceeded expectations in all aspects of his duties and responsibilities as a police officer.
[26] There were also many character letters from friends, former teaching colleagues, fellow police officers and neighbours. They described Mr. Smith as a person with a strong moral compass, kind and compassionate, affable, even-tempered, possessing a good work ethic and someone dedicated to his community who chose a profession that he thought would best serve this commitment to public service.
[27] Here are two illustrative examples from those letters:
a. The first is from the letter of Reverend Brad Beale who is an Anglican priest, the chaplain of the Belleville Police Service and Rector of St. Thomas Anglican church in Belleville, a parish which is heavily involved with marginalized members of the local community. Describing his interactions with Mr. Smith, Reverend Beale wrote:
I have been regularly impressed by his compassion, patience and empathy in dealing with a variety of people in difficult situations. I have regularly witnessed him resolving particular instances, (calls) with tact and diplomacy, as it is not uncommon for us to require police assistance on our parish property, or at the Grace Inn Shelter for the homeless. There is a stalwartness about Jeff which is admirable. I have additionally seen him bring just the right touch of levity into some contexts at just the right time, which indicates to me that he possesses a wisdom, adaptability, and intuition which is rare. He is highly skilled at de-escalating otherwise tense environments. Sadly, sometimes this does not prove fruitful, in spite of his best efforts.
Among community members, and those fellow clergy, and social workers, who are also engaged in ministering to those members of our community who are suffering from issues related to mental health and sometimes also addictions, Constable Smith is respected and highly regarded. This is not something which comes easily, but rather, is earned. It speaks volumes about the fullness of his character that he should be so regarded.
b. The second is from the letter of Kim Guthrie, a retired OPP officer who first met Mr. Smith in a professional capacity but later became friends with him and his family. She disclosed their mutual involvement in a charitable organization dedicated to pediatric cancer research. She wrote about one event that she considered emblematic of his personal character which was his response to a terrible car accident involving the Kort family that occurred in March 2022 in Florida. Pieter Kort, a defence lawyer in Belleville, was returning home with his family when their vehicle was struck from behind. Two of the children were killed and the rest of the family suffered serious injuries. Ms. Guthrie wrote:
The two families spent some time together enjoying Spring break. When tragedy struck the Kort family just a few days later, Jeff and his family were driving home to Canada but immediately turned around and went to the hospital and supported Pieter until more family members could get there from Canada. I also understand that Jeff later accompanied the bodies of Pieter’s deceased daughters from the Toronto airport to the funeral home. Jeff also participated in a significant fundraiser for the Kort family. Because this is the kind of man Jeff is.
[28] Mr. Smith exercised his right of allocution on March 28. He apologized to Mr. Baptiste and his family. His apology, I find, was sincere.
The positions of the parties
[29] As I stated earlier, the Crown’s position is that a conditional sentence of 30-60 days on house arrest terms would be a fit and proper one. Mr. Bulmer emphasized that, in cases of police officers convicted of criminal offences, deterrence and denunciation are the paramount sentencing principles. They should face more serious consequences than ordinary citizens who have committed the same or a similar crime. In most cases, if it is an assault of a person in custody, which the Crown says is the case here, a custodial sentence is usually imposed. I should also take into account that the victim, Mr. Baptiste, is Indigenous; Mr. Bulmer does not contend that Mr. Smith had a racist motive but given the context, there is a need for a heightened degree of denunciation.
[30] The defence does not dispute that deterrence and denunciation are the predominant sentencing principles but stressed that sentencing remains a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. Mr. Kinahan took strong issue with the contention that Mr. Baptiste’s Indigenous status had anything to do with the actions of the police that night. A conditional discharge would be in the best interest of Mr. Smith and not contrary to the public interest, considering the particular circumstances of the offence, Mr. Smith’s personal background, his moral culpability and the absence of aggravating factors seen in other cases of police misconduct.
The relevant sentencing principles
[31] I turn now to a discussion of the applicable sentencing principles in this case.
[32] The statutory requirements are set out in section 718 of the Criminal Code. The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. The fundamental principle is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[33] In R. v. Theriault, 2021 ONCA 517, Chief Justice Tulloch stated, at para. 206:
It is well recognized that police are “held to a higher standard than would be expected of ordinary citizens” because they are charged with enormous responsibilities and granted a great deal of trust and power. Police officers are duty bound to serve and protect the community. They are also duty bound to uphold the law. When the conduct of a police officer runs contrary to either of these duties, the legitimacy of the rule of law – a postulate of our constitutional structure – rests on fragile ground. This court has emphasized that the principles of denunciation and general deterrence become magnified in these circumstances. [Citations omitted]
[34] Because of this position of public trust, the sentence imposed on a police officer will generally be more severe than that imposed on an ordinary person who commits the same crime: R. v. Schertzer, 2015 ONCA 259, at para. 133.
[35] Police officers are sworn to uphold the law; they “are charged with enormous responsibilities to maintain order and to protect members of the public from harm and “they are granted special privileges and protections to enable them to discharge these duties.” If, as here, s. 25 of the Criminal Code is found not to apply, “a police officer will have abused his or her authority and breached the trust of the public in general, and that of anyone harmed along the way”: R. v. Forcillo, 2018 ONCA 402, at para.198.
[36] The racial context within which the offence took place is a relevant consideration: R. v. Theriault, 2021 ONCA 517, at paras. 210-211; R. v. Doering, 2020 ONSC 5618, at paras. 52-58. This is so, even in the absence of any evidence of racial animus or motivation on the part of the offender.
[37] While there is a need for heightened denunciation, this does not mean a harsher sentence. As Justice Pomerance explained in Doering at para.58: “the sentencing of an individual offender is not the place to right society’s wrongs” and a police officer “must not be penalized for the acts of others, or for systemic failings that have generated racism and discrimination.” Yet, “just as it would be wrong to punish Cst. Doering for societal failings, so too would it be wrong to ignore the broader context.”
[38] Although this contextual factor is to be considered, my focus must always be on the individual before me and the fundamental principle of sentencing-that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender: Theriault, at paras. 215-216. Sentencing is a highly individualized exercise. The determination of a fit sentence is driven by the specific facts of the offence and the unique characteristics of the offender.
[39] In considering the gravity of the offence, the Crown contends that Mr. Baptiste was in the same position as a prisoner and, as such, a jail sentence is warranted. There is no question that a premeditated assault on a defenceless prisoner will usually result in a jail sentence: R. v. Feeney, 2008 ONCA 756 and R. v. Byrne, 2009 ONCA 134. I also accept that this proposition is not restricted to an individual who is actually in custody at a police station or in a jail: see R. v. Theriault, 2020 ONSC 6768, at paras. 69-70.
[40] However, the cases cited by the Crown are distinguishable in an important respect. This was not a situation where the assault happened after the person was placed in custody or was otherwise under the secure control of the police. Rather, it was a fluid situation which escalated quickly and, after the initial contact, Mr. Smith was responding to Mr. Baptiste actively resisting the arrest. His actions were aimed at subduing Mr. Baptiste so that he could be handcuffed. This is far different than a police officer who callously assaults a vulnerable person, knowing that there is no justification for the use of any force at that moment in time.
[41] This also goes to Mr. Smith’s moral blameworthiness. He honestly believed he had grounds to arrest Mr. Baptiste. He was relying on the stated grounds of a colleague who had more experience than him. There was also another more senior officer present who did not take any issue with the arrest; indeed, she participated in it.
[42] In my decision, I recounted the evidence of Mr. Smith and Constable McAuley about what was said to Mr. Baptiste about the police investigation before the formal arrest was initiated. The arrest itself was unlawful because the necessary objective grounds were absent, but Mr. Smith was acting in good faith. He proceeded with the arrest in graduated steps – explaining his grounds to Mr. Baptiste; asking for his cooperation; when it was not forthcoming, placing his hands on Mr. Baptiste; and it was only when Mr. Baptiste became actively resistant, that more force was used by him. Mr. Smith was not acting out of anger or due to a loss of control. His objective was, I find, to complete the arrest without injuring or otherwise harming Mr. Baptiste. And, to repeat, had I found that s. 25 applied to his use of force that night, it was not disproportionate, unreasonable or excessive.
The mitigating and aggravating circumstances
[43] For every sentence, it is important to identify those factors which would either increase or decrease the sentence. I will begin with reviewing the mitigating factors.
[44] At the risk of stating the obvious, Mr. Smith has no criminal record and is a first-time offender.
[45] He has no disciplinary history as a police officer.
[46] He is a good man-a supportive husband and father; a helpful neighbour; a loyal friend; an esteemed colleague both in his former career as a teacher and in his current one; and a dedicated public servant.
[47] The Crown pointed out that it is not uncommon for police officers to present such good character evidence. Some judges have observed that this type of evidence has diminished significance in the case of a police officer because it is their good character that has allowed them to achieve a position of trust in the first place.
[48] I do not believe there is any general rule that can be applied in relation to this type of evidence, depending on the person’s occupation. In this case, the cumulative evidence tells me that Mr. Smith does not simply enjoy a good public reputation but that he is a trustworthy and empathetic person who would not intentionally misuse his position as a police officer and that he takes his duties and responsibilities to the community very seriously. In short, he is committed to upholding the public trust granted to the police not just in the enforcement of the law but also in how he treats people on a day-to-day basis.
[49] There are collateral consequences for him. He will be subject to a hearing under the Police Services Act which will carry with it some form of penalty, although the nature and extent of it is unknown to me. There has been public vilification of him not only due to the criminal prosecution but also from the portrayal of his conduct as racially motivated. The latter, based on the evidence at trial, is completely unjustified. Corollary consequences are not a substitute for a fit sentence, but they play a role in determining what is the appropriate disposition: R. v. Suter, 2018 SCC 34, at para. 49 and Doering, at para. 64.
[50] Mr. Smith has apologized to Mr. Baptiste. He has acknowledged responsibility for his actions. The Crown questioned how sincere he was in that regard, asserting that the acceptance of responsibility was qualified by admitting fault only to the extent that he did not have the defence of s. 25 in the circumstances. This, in my view, does not detract from the central concession made by him – that what he did was wrong and caused harm for which he is responsible.
[51] The aggravating circumstance is the breach of trust. This is a statutory aggravating factor: Criminal Code, s. 718.2(a)(iii). A criminal offence, committed by a police officer, reflects an abuse of their authority and constitutes a violation of the public trust reposed in them.
Is a discharge appropriate?
[52] The defence submits that a conditional discharge should be granted to Mr. Smith. Section 730 of the Criminal Code provides:
Where an accused pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order.
[53] Dealing with the first of the criteria, the best interests of the offender, specific deterrence must not be a relevant consideration nor rehabilitation. Usually, the offender is a person of good character without a previous conviction and it is not necessary to enter a conviction to deter them from committing future offences or to rehabilitate them: R. v. Kaushel, [2022] O.J. No. 3946, at para. 144.
[54] Mr. Bulmer suggested during argument that I should be concerned about specific deterrence in relation to Mr. Smith because there is no meaningful remorse or contrition for committing the offence. I disagree. Mr. Smith is entitled to base his acceptance of responsibility on my legal finding in this case – that he is guilty of assault because he did not have the requisite objective grounds for the arrest. Moreover, I am satisfied that the evidence establishes that neither specific deterrence nor rehabilitation are factors that need to be addressed in this case. I find that a conditional discharge would be in the best interests of Mr. Smith.
[55] The second criteria, which is the public interest, presents a more difficult question. A discharge is not restricted to trivial matters. They can be granted where an offender has acted completely out of character or where a criminal record will have a tendency to interfere with employment. They are available in cases which involve a breach of trust, whether the offender is a civilian or a police officer. The need for general deterrence must be given due weight but does not preclude a discharge: Kaushal, at 143-149. It is not confined to any class of offences except those specifically proscribed by the Criminal Code: R. v. Sanchez-Pino, [1973] 2 O.R. 314.
[56] Counsel provided many authorities in support of their respective positions. The case law is helpful in identifying the applicable principles. I bear in mind, when considering these decisions, the parity principle codified in s. 718.2 (b) of the Criminal Code that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. I also recognize, as other judges have in recent years, that societal values towards policing and the application of force by police officers on citizens is evolving and the precedential value of past cases in which police officers have received discharges for assaultive behaviour has lessened. However, depending on the particular circumstances and the particular offender, a discharge can be the appropriate disposition for a police officer found guilty of assault: R. v. Rice, 2015 ONCA 478 and Kaushel, at para.141.
The fit and proper sentence
[57] Mr. Smith is a person of exemplary character and has the same attribute as a police officer. He made a mistake in relying upon another officer’s information that there were grounds to arrest Mr. Baptiste. He genuinely believed that he was in the lawful execution of his duties when he put his hands on Mr. Baptiste to arrest him. His purpose was to effect an arrest, not to physically hurt or harm Mr. Baptiste. The force that he used in attempting to achieve that objective was unlawful in the circumstances but not excessive as that term is commonly understood. His apology in court to Mr. Baptiste and his family is meaningful. I am sure that he understands the gravity of his wrongful conduct and the impact of it not only on Mr. Baptiste but also the Belleville Police Service.
[58] Having regard to the overall purpose and principles of sentencing and considering all the facts and circumstances of this offender and this offence, including the mitigating and aggravating factors, I have concluded that a fit and proper sentence is a conditional discharge and a 12-month probation order. A conditional discharge is in Mr. Smith’s best interests and, in the unusual circumstances of this case, not contrary to the public interest.
[59] The probation order will include the statutory conditions under s. 732.1(2) of the Criminal Code and the following terms:
i. Report in person to a probation officer within two working days and after that, when required by the probation officer and in the manner directed by the probation officer.
ii. Abstain from communicating, directly or indirectly, with Mr. Baptiste or having any contact with him except where as required in the execution of his duties as a police officer.
iii. Perform 120 hours of community service work as directed by and to the satisfaction of the probation officer during the period of the probation order. The reporting condition will end upon completion of the community service hours.
HURLEY J. Released: July 3, 2024