Offences of Violence by Persons in Authority (Sentencing)
|This page was last substantively updated or reviewed January 2021. (Rev. # 80719)|
All persons working in the justice system "owe a duty to the public to uphold the values of that system".
Police officers, as officials discharging public duties, occupy a special position of trust in the community.
The administration of justice “depend[s] on the fidelity and honesty of the police”.
The commission of an offence while acting as a peace officer will generally be treated as a breach of trust offence.
Police powers give them access to "places and situations" that ordinary persons do not experience. In those circumstances they can commit offences without raising suspicions.
- Objectives of Sentencing
Breach of trust offences committed by peace officers must emphasize denunciation and deterrence.
Absent exceptional mitigating factors, a peace officer who commits a criminal offences should receive more severe sentences than those of regular citizens.
R v Cook, 2010 ONSC 5016 (CanLII), per Hill J, at para 29
R v Feeney et al., 2008 ONCA 756 (CanLII), 238 CCC (3d) 49, per curiam, at para 5
Hill v Hamilton Wentworth, 2007 SCC 41 (CanLII), , per Charron J, at para 116 in dissent “[p]olice officers are the main actors who have been entrusted to fulfil this important function” of upholding the law.
Cook, supra, at para 29
R v LeBlanc, 2003 NBCA 75 (CanLII), 180 CCC (3d) 265, per Drapeau CJ, at para 32
R. v. McClure (1957), 118 CCC (3d) 192 (Man. C.A.) at 200
R v Berntson, 2000 SKCA 47 (CanLII), 145 CCC (3d) 1, per Tallis JA, at para 24 ("[A] heavy trust and responsibility is placed in the hands of those holding public office or employ")
- ↑ McClure, supra, at 200
- ↑ e.g. Cook, supra
Cook, supra, at para 32 (" The police, in the execution of their duties, gain access to places and situations which the ordinary person does not experience: ... In such situations, an officer may be in a position “where he can commit offences without arousing suspicions”: ... For example, where a police officer victimizes a drug dealer, “the offender is likely to escape scot-free”:")
LeBlanc at para 27 ("Police officers have opportunities, practically on a daily basis, to cross the line and engage in prohibited conduct. The public trusts them to resist the temptation and relies upon the courts to deal firmly with those who stray.")
Cook, supra at para 38
R v Cusack, 1978 CanLII 2283 (NS CA), per Hart JA ("If one unbundles the several principles that come into play in shaping a fit sentence for conduct by an on-duty police officer amounting to criminal breach of trust under s. 122, general deterrence and denunciation overshadow all others. Those principles command more than lip service; they must impact upon the sentencing process and help shape its outcome.")
see also s. 718.2(a)(iii) of the Code
Cook, supra at para 38
Cusack, supra at 2
R v Gabruch, 2016 ABPC 16 (CanLII), per Fraser J, at para 9
R v Bal, 2013 BCPC 21 (CanLII), at para 95
- Good Character
A peace officer will usually come with the ability to adduce a great deal of good character evidence as it is this quality of character that allows the person to attain a position of trust.
- Impact on Employment
While loss of employment as a peace officer is a factor to be considered in sentence it cannot "trump" or undermine the need for denunciation and deterrence. Loss of employment should be considered an ancillary consequence that is strictly speaking not a mitigating factor.
- Terms of Custody
A peace officer serving incarceration will almost inevitably be expected to serve the sentence in protective custody and can be mitigating.
- General Considerations
Factors to offences of violence by police officers can include:
- Was the officer on duty at the time or off duty?
- Was the offence committed spontaneously in the heat of the moment or was it committed continually or with time for the officer to consider his actions?
- Was there a concern for his personal or fellow officers’ safety at the time of the assault?
- Was the victim a prisoner in the officer’s custody in an institution?
- What was the nature of the assault?
- What were the injuries suffered by the victim?
- Was the sentencing at the conclusion of a trial or was it a result of a guilty plea?
- Did the officer express or show remorse?
- Did the officer impede or assist the resulting police investigation of his actions?
- What was the experience and rank of the officer at the time of the offence?
In Ontario a custodial sentence in excess of 60 days is generally required for assaults by peace officers or court officers on prisoners. Cases with custody involve some form of aggravation such as:
- "ongoing assaults by a group of officers";
- "defenceless prisoners who were handcuffed or shackled";
- "cover-ups with falsified notes and false reports"; and
- "the laying of charges against the innocent victim of the assault".
In such cases, 30 to 60 days is considered "lenient".
R v Cook, 2010 ONSC 5016 (CanLII), per Hill J, at para 36
R v Lepine, 2010 ABPC 374 (CanLII), per Rosborough J, at para 24
Cook, supra, at paras 41 to 42
R v Preston, 2008 ONCA 530 (CanLII), per curiam, at para 3 (The trial judge "understood the appellant’s job was significantly at risk but as he correctly said that factor “ought not in this case on these facts trump the pressing need for denunciation and deterrence”.")
Lepine, supra at para 26 citing Manson, et al in Sentencing and Penal Policy in Canada, 2nd ed, Manson, Healy, Trotter, Roberts and Ives, Edmond Montgomery Publications Limited, Toronto, 2008 at p. 124
R v Mand, 1999 ABPC 160 (CanLII), 334 AR 398, per Ayotte J ("[The offender] also makes a more troubling submission ...to take into account the possible effect on the constable’s employment, on his career as a police officer, if a conviction is entered. ... I hasten to add that sentencing courts cannot be held hostage to what employers might do. Every employed offender must face the reaction of his employer to his or her conviction for a criminal offence. Indeed courts hear every day about the likely loss of a job upon conviction for impaired driving, for example. That is an inevitable side-effect of breaking the law. Employers have the right to make decisions about employment; courts have a duty to impose an appropriate sentence.")
R v Lindsay, 2021 ABQB 839 (CanLII), per Lema J, at para 98 ("This offence effectively ended Mr. Lindsay’s career with the Calgary Police Service, but as a not-unexpected consequence, it does not mitigate here...")
R v Partington, 2021 ABPC 301 (CanLII), per Ayotte J
Cook, supra, at para 43
- ↑ R v Gillian, 2009 BCPC 241 (CanLII), per Watchuk J, at para 69
- ↑ R v Thomas, 2012 ONSC 6653 (CanLII), 104 WCB (2d) 704, per Code J, at para 49
- ↑ Thomas, ibid., at para 49
Thomas, ibid., at para 49