Offences of Violence by Persons in Authority (Sentencing)
| This page was last substantively updated or reviewed January 2021. (Rev. # 95850) |
General Principles
Factors
- 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.[1]
- 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.[2] Loss of employment should be considered an ancillary consequence that is strictly speaking not a mitigating factor.[3]
- Terms of Custody
A peace officer serving incarceration will almost inevitably be expected to serve the sentence in protective custody and can be mitigating.[4]
- General Considerations
Factors to offences of violence by police officers can include:[5]
- 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?
- Ranges
In Ontario a custodial sentence in excess of 60 days is generally required for assaults by peace officers or court officers on prisoners.[6] Cases with custody involve some form of aggravation such as:[7]
- "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."[8]
- ↑
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