Employment Status as a Factor of Sentencing

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2017. (Rev. # 96220)

General Principles

See also: Sentencing Factors Relating to the Offender, Offences of Violence by Persons in Authority (Sentencing), and Assaults Relating to Persons in Authority (Sentencing Cases)

In general, a good work history is mitigating as it indicates a prior good character.[1]

The offender's "opportunity for employment" is an important factor to determine if there is a "reasonable prospect for rehabilitation."[2]

A judge may take judicial notice that a first-time offender receiving a criminal conviction will negatively impact their future in various ways including employment and travel.[3]

  1. ↑ R v Johnston, 2011 NLCA 56 (CanLII), 274 CCC (3d) 388, per White JA (3:0), at para 21
  2. ↑ R v Hunt, 2012 NLCA 5 (CanLII), 100 WCB (2d) 602, per Barry JA (3:0), at para 19
  3. ↑ R v Edmunds, 2012 NLCA 26 (CanLII), 288 CCC (3d) 164, per White JA, at para 20

Effect on Employment and Status

There is a division on how to treat the loss of employment as a mitigating factor. There are some authorities that suggest that it is.[1] While other courts contend loss of professional or social status is not generally a mitigating factor nor is the ability to do a particular job well a mitigating factor.[2]

It has been said that the "ruin and humiliation" brought upon the accused and his family as well as the loss of professional status can provide denunciation and deterrence.[3]

  1. ↑ R v Gorman, [1971] O.J. No. 1640, (1971), 1971 CanLII 628 (ON CA), 4 C.C.C. (2d) 330 (Ont.C.A.)
    R. v. McCormick, (1979), 1979 CanLII 2958 (MB CA), 47 C.C.C. (2d) 224, [1979] 4 W.W.R. 453 (Man.C.A.)
    R v Bunn, 2000 SCC 9 (CanLII), [2000] 1 SCR 183, per Lamer J (5:3)
  2. ↑ R v Ambrose, 2000 ABCA 264 (CanLII), 234 WAC 161, per Cote JA (2:1), at para 37
  3. ↑ Bunn, supra, at para 23

Peace Officers

Objectives of Sentencing

Breach of trust offences committed by peace officers must emphasize denunciation and deterrence.[1]

Duties and Institutional Importance

Offences committed by persons who are "sworn to uphold the law" such as police officers have a "special duty to be faithful to the justice system" and so sentences require the objectives of denunciation has heightened significance.[2]

Police officer offenders who commit a breach of trust will be subject to "severe sentences" absent exceptional mitigating factors.[3]

The administration of justice “depend[s] on the fidelity and honesty of the police”.[4]

All persons working in the justice system "owe a duty to the public to uphold the values of that system."[5]

Breach of Trust

Police officers, as officials discharging public duties, occupy a special position of trust in the community.[6] The commission of an offence while acting as a peace officer will generally be treated as a breach of trust offence.[7]

Special Status

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.[8]

Gravity of Penalties

Absent exceptional mitigating factors, a peace officer who commits a criminal offences should receive more severe sentences than those of regular citizens.[9]

Serving a Jail Sentence

A peace officer being sentenced to a period of incarceration is at risk from the general population and will inevitably serve much of the sentence in protective custody, which should warrant mitigating the punishment.[10]

  1. ↑ 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
  2. ↑ R v Hansen, 2016 ONSC 3583 (CanLII), 30 CR (7th) 117, per Braid J, at paras 28 to 29
    R v Schertzer, 2015 ONCA 259 (CanLII), 325 CCC (3d) 202, per Benotto JA, at paras 134 to 136 - re "special duty"
  3. ↑ Hansen, supra, at para 28
    R v Cook, 2010 ONSC 5016 (CanLII), OJ No 4414, per Hill J
    R v Rudge, 2014 ONSC 241 (CanLII), OJ No 113, per Hambly J
    R v Leblanc, 2003 NBCA 75 (CanLII), 180 CCC (3d) 265, per Drapeau CJ
  4. ↑ R. v. McClure (1957), 118 CCC (3d) 192 (Man. C.A.) at 200
  5. ↑ 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.
  6. ↑ Cook, supra, at para 29
    R v LeBlanc, 2003 NBCA 75 (CanLII), 180 CCC (3d) 265, per Drapeau CJ, at para 32
    McClure, supra, 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")
  7. ↑ e.g. Cook, supra
  8. ↑ 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.")
  9. ↑ 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
  10. ↑ Cook, supra, at para 43 ("Because an inmate who is known to be, or discoverable as, a former police officer is at risk from general population prisoners, such an offender will almost inevitably serve much or all of the sentence in protective custody. This reality, involving as it does more limited social contact and institutional amenities, ordinarily warrants consideration in mitigation of punishment.")
    Rudge, supra, at para 23
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