R. v. Lamar, 2017 BCSC 240

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lamar, 2017 BCSC 240 Date: 20170127 Docket: 98324-7 Registry: Kamloops Regina v. Jerry Lee Lamar Leon Francis Leclerc Before: The Honourable Mr. Justice Dley Oral Reasons for Sentence Counsel for the Crown: J.M.K. Gold F.J. Caputo Counsel for the Accused Lamar: D.G. Campbell Counsel for the Accused Leclerc: J. Jensen Place and Date of Trial/Hearing: Kamloops, B.C. January 10, 2017 Place and Date of Judgment: Kamloops, B.C.

January 27, 2017 [ 1 ] THE COURT: Jerry Lee Lamar and Leon Francis Leclerc have pled guilty to a charge of assaulting a peace officer engaged in the execution of his duty. It was an assault that left the peace officer unconscious at the side of the road. [ 2 ] Neither offender has been in trouble with the law before. Neither contests that the sentence is deserving of jail. The only question is whether the sentence should be served in a jail or in the community.

Background Facts [ 3 ] The Crown and defence have filed an Agreed Statement of Facts which set out the relevant circumstances of the offence. [ 4 ] On July 5, 2014, at approximately 4:00 p.m., Constable Koester, a member of the RCMP, was conducting a roadblock near Pritchard. He stopped a vehicle operated by Mr. Lamar. The vehicle was a truck towing a boat. The boat trailer had an expired insurance decal. The vehicle was also occupied by a third person and by the accused, Mr. Leclerc. Constable Koester smelled alcohol in the vehicle and he began an impaired driving investigation with respect to Mr.

Lamar. [ 5 ] A dashboard-mounted camera recording preserved the events sometime after Mr. Lamar was out of his vehicle and near Constable Koester's cruiser. [ 6 ] While standing near the police cruiser and while recorded, Constable Koester and Mr. Lamar discussed Mr. Lamar's alcohol consumption. Mr. Lamar indicated that there had been recent alcohol consumption. Constable Koester explained the process of his investigation, including an explanation of how an approved screening device was operated. [ 7 ] After a short discussion with Mr. Lamar, Constable Koester made a demand for a sample of Mr. Lamar's breath.

As Constable Koester read the demand, Mr. Leclerc was approaching some 30 to 40 feet away. [ 8 ] Constable Koester restarted and completed his ASD demand. Mr. Lamar told Constable Koester that he had no intention of complying with the demand. Constable Koester warned Mr. Lamar of the legal consequences of refusing to provide a sample. Mr. Lamar unequivocally stated that he would not provide a sample. [ 9 ] Constable Koester told Mr. Lamar that he was under arrest for refusing to provide a breath sample. Mr. Lamar turned to back away and, as Constable Koester approached him, Mr.

Lamar responded, "Don't do it." [ 10 ] Constable Koester deployed his pepper spray, which hit the back of Mr. Lamar's head. Mr. Lamar then ran toward the front of his vehicle as Constable Koester gave chase. [ 11 ] Mr. Lamar received one blow to the back of his head and an injury to the top or back of his head (which was observed the following day).

[ 12 ] The pair struggled near the front of Mr. Lamar's vehicle. Mr. Lamar got on top of Constable Koester's chest while punching him. He delivered a number of blows to Constable Koester. Constable Koester bucked Mr. Lamar off his chest, only to have Mr. Lamar regain his position on Constable Koester while straddling the officer's stomach and chest. [ 13 ] Mr. Lamar summoned Mr. Leclerc by yelling, "Leon, gun," or something to that effect. The Crown does not dispute that Mr. Leclerc made that summons. In response to the summons, Mr. Leclerc ran toward the altercation occurring between the officer and Mr. Lamar.

Mr. Leclerc believed that Mr. Lamar yelled, "Leon, gun," or something to that effect. Mr. Leclerc believed, and the Crown does not dispute, that Constable Koester was attempting to retrieve his firearm, and engaged in the assault on Constable Koester to prevent Constable Koester from retrieving his firearm. [ 14 ] When running over to the altercation, Mr. Leclerc believed, and the Crown does not dispute, that Constable Koester was trying to remove his gun out of the holster and, in an attempt to stop him from doing so, Mr.

Leclerc stomped on the officer's shoulder several times and, albeit recklessly but unintentionally, one or more of those blows struck the officer in the head causing him to lose consciousness. [ 15 ] Constable Koester's firearm remained in its holster throughout the incident. [ 16 ] Mr. Lamar and Mr. Leclerc then departed the scene. Mr. Lamar left his driver's licence behind on the hood of the police cruiser. [ 17 ] Constable Koester's baton was found in the closed position near where he was assaulted. [ 18 ] Constable Koester was assisted by a passerby within a minute or two of both offenders departing.

The officer was confused and unsure of his surroundings, as shown in the dashboard recording. [ 19 ] The officer sustained a concussion as a result of the assault. He was off work for approximately one month. After his return to work, he had sensitivity to light for approximately two weeks. [ 20 ] The dashcam shows that Constable Koester was remarkably patient with Mr. Lamar, who was unnecessarily argumentative and obnoxious. [ 21 ] Constable Koester was also keeping an eye on Mr. Leclerc, who was agitating to get involved in Mr. Lamar's drinking and driving investigation. Constable Koester warned Mr.

Leclerc to keep his distance from the investigation that he was conducting or he risked a charge of obstruction. For reasons that have not been explained, Mr. Leclerc was intent on injecting himself into a matter that did not concern him. Positions of the Parties [ 22 ] The Crown seeks a jail sentence for both offenders and argues that because of the emphasis on denunciation and deterrence, the sentence must be served in prison. The Crown says that the appropriate sentences should be in the range of 9 to 12 months for Mr. Lamar and 18 months for Mr. Leclerc.

In both cases, the jail sentence should be complemented by a lengthy probation order. [ 23 ] The Crown says that because Mr. Leclerc administered the kicks and stomps, his conduct attracts the greater moral culpability and, therefore, should attract a longer sentence. [ 24 ] Both offenders submit that they pose no danger to the community and that a custodial sentence will result in unnecessary suffering for employees and family who depend on the offenders being in the community. Both offenders submit that a two-year conditional sentence is a just sentence.

Both offenders say that they do not take issue with house arrest for the full two years. They do not quarrel with the imposition of a probation order. Discussion [ 25 ] Peace officers are held to a high standard. They are constantly and closely scrutinized. They are to be held accountable when that standard is breached. Oftentimes their conduct is affected by the circumstances they face, the need to make hasty decisions, and the hazards of the profession. That is the lot of a peace officer.

That is the reality of policing. [ 26 ] However, peace officers are not expected to endure the kind of abuse faced by Constable Koester. There are criminal sanctions that arise out of obstructing police or, as in the case here, an assault. The public expects that police officers will execute their duty to prevent, investigate, and solve criminal conduct. The public does not expect that police officers are to be thwarted in the ordinary execution of their duty. [ 27 ] Society expects that peace officers will be given the necessary tools and authority to keep the public safe.

In return, it is reasonable for society to expect that peace officers will be given a sense of safety by imposing significant sanctions on those who harm officers in the execution of their duty. [ 28 ] Hence, it makes perfect sense to treat the assault of a peace officer as a matter that requires denunciation and deterrence to be the primary sentencing factors. [ 29 ] In R. v.

Ponticorvo , 2009 ABCA 117 at para. 19 , the court said: …principles of deterrence and denunciation are the primary considerations in sentencing for offences involving violent assaults on police officers, and that a substantial term of imprisonment is necessary in all but the most unusual circumstances to reflect those principles.

[30] I take that to mean that only in exceptional circumstances will an offender not be imprisoned for a violent assault on a peaceofficer. [31] The Criminal Code sets out the purposes and principles of sentencing.

Section 718 states that: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [32] By virtue of s. 718.02, the offence of assaulting a peace officer requires the court to give primary consideration to the objectivesof denunciation and deterrence of the conduct that forms the basis of the offence. [33] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The court shallalso increase or reduce the sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or theoffender. [34] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [35] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. [36] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to circumstances of Aboriginal offenders. [37] Under s. 742.1, a court that imposes a sentence of imprisonment of less than two years may order the offender to serve thesentence in the community.

The court must be satisfied that service of the sentence in the community would not endanger the safety ofthe community and would be consistent with the fundamental purpose and principles of sentencing as set out in the Criminal Code. [38] The principles with respect to conditional sentences are set out in R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, andare applicable as follows: 1) a conditional sentence is intended to address punitive objectives and include punitive conditions; 2) a conditional sentence may properly be longer than a custodial term of imprisonment; 3) whether the safety of the community would be endangered is only one of the prerequisites for imposing a conditional sentence, it isnot the primary consideration.

The danger that the offender might pose to the community may be reduced to an acceptable level with theattachment of appropriate conditions; 4) the gravity of the offence is relevant in considering whether a conditional sentence is appropriate, but there is no presumption thatspecific offences are inappropriate for a conditional sentence; 5) a conditional sentence can provide a significant amount of denunciation where onerous and punitive conditions are imposed and theterm is longer than a period of imprisonment.

Generally, the more serious the circumstances, the longer and more onerous and punitivethe conditional sentence should be; and 6) a conditional sentence may be available where the sentencing objectives of denunciation and deterrence are the primary factors toconsider. [39] Although sentencing is very much an individualized process, both offenders here can be included in a joint discussion aboutcertain aspects of the suitability, or not, of a conditional sentence. [40] There is no dispute that a sentence for these offenders is imprisonment for less than two years.

That satisfies the firstprerequisite as to whether a conditional sentence can be considered. [41] The next question is whether the offenders would endanger the community if permitted to serve the sentence in the community. [42] To describe the offenders' conduct prior to the assault as being obstructionist, defiant, and lacking respect for the law would notbe an overstatement. To say that the assault itself was perpetrated by a couple of cowardly bullies flexing their muscles as back alleythugs would also not be an overstatement.

The question is whether these offenders in these circumstances endanger the community. [43] Mr. Leclerc says that he has taken counselling to gain an insight as to why he acted in the fashion that he did. It is not apparentthat the counselling has provided any answer as to his abhorrent behaviour. His counsel suggests that it was a "fight or flight"circumstance. I do not accept that to be a reasonable or realistic explanation. Mr. Leclerc's early agitation to become involved dispels any

notion that his kicking and stomping was simply a panicked decision to cause the harm that he did. [ 44 ] Mr. Lamar has given no explanation as to his conduct, other than to suggest it was a reaction to situation that had gotten out of control. [ 45 ] The video recording raises the spectre as to whether alcohol was a contributing factor to the offenders' behaviour. Both offenders say that alcohol was not a factor.

In spite of their assertions to the contrary, the video indicates that alcohol did play a factor in their behaviour. [ 46 ] Both offenders say that they are and have been law-abiding citizens with great respect for policing authorities. In the absence of any reasonable explanation for their behaviour, it is difficult to accept that they, in the face of a jail sentence, now genuinely have the respect that they speak of. [ 47 ] I can only conclude that both offenders pose a danger to the community, unless they are constrained by significant and punitive restrictions to their liberty.

However, I am also of the view that the danger posed can be reduced to an acceptable level through the imposition of appropriate conditions. [ 48 ] The next inquiry is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, particularly where the primary objectives are denunciation and deterrence. [ 49 ] It is apparent that there is no prohibition against a conditional sentence where denunciation and deterrence are to be emphasized.

The Criminal Code requires that a sentencing judge exercise restraint and consider all available sanctions, other than imprisonment, that are reasonable in the circumstances. [ 50 ] I am satisfied that in these circumstances, a conditional sentence can satisfy the objectives of denunciation and deterrence, and therefore would not be inconsistent with the fundamental purposes and principles of sentencing that I am bound to follow. [ 51 ] The final question is whether exceptional circumstances exist such that either offender will not be imprisoned for the violent assault on a peace officer. [ 52 ] Mr.

Campbell forcefully argues that denunciation and deterrence can be served through the imposition of a two-year conditional sentence which, in these exceptional circumstances, does not require imprisonment. [ 53 ] He says that Mr. Lamar is remorseful for his conduct, which has blemished an otherwise law-abiding life. Mr. Campbell argues that imprisoning Mr. Lamar will have a far-reaching impact. He will no longer be able to assist his mother, his business will fail, and his employees will be out of work. [ 54 ] Those are factors that I must consider in favour of a conditional sentence.

To ignore those factors would result in an automatic jail sentence for this offence. To ignore those factors would also be ignoring the principles of sentencing that I am bound to follow under the Criminal Code . [ 55 ] However, it should be noted that in all cases of imprisonment, an offender is going to be impacted, his family is going to be impacted and, if he has a business, his employees are going to be impacted. That does not automatically result in a jail sentence being avoided. [ 56 ] The circumstances of this assault, when balanced against the particular circumstances of Mr.

Lamar, place the question of custodial jail or imprisonment in the community precariously close to the line of whether exceptional circumstances exist. [ 57 ] The Crown has conceded that Mr. Lamar summoned Mr. Leclerc by yelling about a gun. The Crown has also conceded that Mr. Leclerc believed the officer to be in the act of pulling his gun, and that the stomping to the officer's head was unintentional.

But for those concessions, exceptional circumstances would not exist -the sentence would be jail. [ 58 ] I have been convinced that the balance has been slightly tipped to where this is one of those rare cases where exceptional circumstances exist. I am satisfied that denunciation and deterrence can be addressed by allowing Mr. Lamar to serve his sentence in the community. [ 59 ] Mr. Leclerc's moral culpability is higher than Mr. Lamar's. I would agree with the submission of Crown counsel that his sentence should be greater.

However, that does not necessarily mean that the sentence must be served in custody. [ 60 ] Mr. Leclerc also has a family to support and employees whose continued employment depend on his availability to the business. It would not be just to imprison Mr. Leclerc, when I have already decided that Mr. Lamar should serve a conditional sentence under similar circumstances. Therefore, in order to ensure that the sentences are consistent, Mr.

Leclerc will be able to serve his sentence in the community. [ 61 ] The appropriate sentences are to be dealt with individually based on each offender's specific circumstances. [ 62 ] Mr. Lamar is turning 52 years of age. He lives in Pritchard and operates a masonry business. He works with his crew of seven employees and is instrumental in the success of the enterprise. At times, the business employs up to 12 workers. Since this offence, the business has suffered, apparently as a result of the sentencing uncertainty facing Mr. Lamar. [ 63 ] Mr.

Lamar has no criminal history. [ 64 ] He lives close to his mother and helps with maintaining her acreage. [ 65 ] Mr. Lamar has presented numerous letters of support. The letters comment on his good character and positive standing in the

community. The letters suggest that this incident was completely out-of-character. [ 66 ] However, the comments set out in the letter authored by Harold Bartel, dated July 24, 2016, provide a not-so-flattering insight to Mr. Lamar's actions. Mr. Bartel wrote [as read in]: When it comes to Jerry Lamar, I equate him as a man's man, reminiscent of a John Wayne character, no fuss, no muss. A man who says what he means and who means what he says. Not a person to suffer fools well and not at all reticent to let anyone know it. [ 67 ] I take those comments to accurately describe what I saw on the video. Mr.

Lamar is a person who is fixated on his own views of the world and impatient with those who have a contrary view. [ 68 ] I must consider the mitigating and aggravating circumstances. The mitigating factors are: 1) Mr. Lamar does not have a criminal record; 2) Mr. Lamar has good support in the community. He has dependants, being his mother and employees of the business; 3) a guilty plea has been entered, sparing the officer the trauma of recalling the assault; 4) Mr. Lamar has abided by his bail conditions over a lengthy period of time; and 5) Mr.

Lamar has expressed remorse. [ 69 ] The aggravating factors are: 1) Mr. Lamar was unreasonably defiant of a peace officer who was in the lawful execution of his duties; 2) Mr. Lamar was part of a two-on-one attack on a peace officer; and 3) Mr. Lamar left the scene of the attack, knowing that the peace officer was injured, leaving the peace officer unattended at the side of the road in a rural area. [ 70 ] The Crown had asked for a nine to 12-month jail sentence. A 12-month jail sentence would have been lenient in these circumstances. [ 71 ] Reference was made in R. v.

Schur , 2015 BCSC 1406 at para. 58 , that a range of nine to 18 months' imprisonment was appropriate for assaulting a peace officer with a weapon. The court summarized the approach to sentencing in peace officer assault cases at para. 59: [59] From the case authorities and the statutory provisions referred to, it is clear that where an offender has assaulted a peace officer the primary considerations on sentencing must be denunciation and deterrence.

By the nature of their duties officers are expected, indeed required, to put themselves in harm's way for the benefit and safety of the community as a whole, and those who assault them by any means must be deterred from doing so again, and others of like mind must similarly be deterred.

In providing for increased maximum sentences and specific sentencing considerations in cases involving assaults of peace officers, the 2009 amendments "augment the protection that peace officers should enjoy" . . . [Emphasis in original.] [ 72 ] In order to ensure that denunciation and deterrence are practically addressed, it may be time to increase the sanctions against those who assault peace officers, so that peace officers can execute their duty with the expectation that they will be protected. [ 73 ] Mr. Lamar has said that he would be content with a two-year conditional sentence.

The two-year sentence must emphasize society's condemnation for his actions and deter others from acting likewise. [ 74 ] At times, it has been said that a sentence in the community is easier to serve than one in jail. That is not necessarily the case. [ 75 ] The sentence that I am going to impose will be necessarily restrictive and punitive. [ 76 ] Mr. Lamar, you are sentenced to a conditional sentence of two years less a day.

The terms of that sentence are as follows: • In addition to the mandatory provisions under the Criminal Code , you shall report to a conditional sentence supervisor today no later than 4:00 p.m., here in the courthouse in Kamloops, British Columbia, and thereafter you shall report as and when directed by the supervisor and in the manner directed by the supervisor; • When first reporting to the supervisor, you shall inform him or her of your present residential address and telephone number, and you shall not change your address or telephone number without first obtaining the written consent of the supervisor; • For the first 15 months, you shall be under house arrest.

For the first seven months, there will be no relief from the house arrest for the purposes of being absent from your residence for work purposes. That is to ensure that you do not pose a danger to the community.

As I understand the nature of your business, it may be done by your employees, but you can still run its administration from home; • You may be outside of your residence for one hour each day between the hours of 1:00 and 2:00 p.m. in order to get exercise; • You may be absent from your residence or on the property which it is located between the hours of 10:00 and 1:00 p.m. each Saturday, so that you may do your shopping or other activities necessary to get you through the week. During those hours, you must be

accompanied by your mother or other such person as approved of by your supervisor; • After the first seven months, you may leave your property only for reasons directly related to your business. You must provide your supervisor in advance with a weekly

schedule of where you will be, so that he may contact you at the locations that you set out in your schedule; • Notwithstanding any other provision of this conditional order, you may be absent from your residence or the property upon which it is located for the purposes of attending court, meetings with your supervisor, or for medical emergencies. In the case of medical emergencies, you are permitted only to attend directly to and from a hospital emergency ward.

In addition, you may attend for medical treatments at other times and locations as approved of by your supervisor; • You shall have no contact or communication, directly or indirectly, with Paul Koester, unless in the ordinary course of his duties as a peace officer; • You shall present yourself at the door to your residence at any time that your supervisor or any peace officer attends there for the purpose of determining your compliance with the house arrest conditions of this order; • You shall respond personally and immediately to the telephone when a peace officer or your supervisor makes a telephone call to your residence for the purpose of determining your compliance with the curfew condition of this order; • You shall not possess any weapons; • You shall not possess or consume any alcohol or drugs, except as prescribed for you by your physician; • You shall not attend or enter any liquor store, beer and wine store, licensed beverage room or other business premise where the primary commodity sold is liquor; • You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by your supervisor.

Without limiting the generality of this condition, such assessment, counselling, or program may relate to alcohol or drug abuse or anger management. [ 77 ] Following the completion of the conditional sentence order: • You shall be bound by a probation order for a period of two years.

The terms of the probation order shall be that within 24 hours of completion of your conditional sentence, you shall report in person to the probation office nearest the place of your residence, and after that you shall report as and when directed by the probation officer; • When first reporting to the probation officer, you shall inform him or her of your present residential address and telephone number, and you shall not change your address or telephone number without first obtaining the written consent of the probation officer; • You shall have no contact or communication, directly or indirectly, with Paul Koester, unless in the ordinary course of his duties as a peace officer; • You shall not possess any weapons; • You shall not possess or consume any alcohol or drugs, except as prescribed for you by your physician; • You shall not enter any liquor store, beer and wine store, licensed beverage room, or other business premise where the primary commodity sold is liquor; • You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by your probation officer.

Without limiting the generality of this condition, such assessment, counselling, or program may relate to anger management or alcohol or drug abuse. [ 78 ] Do you understand the terms of the conditional sentence order? [ 79 ] THE ACCUSED LAMAR: Yes. [ 80 ] THE COURT: Do you understand the terms of the probation order? [ 81 ] THE ACCUSED LAMAR: Yes. [ 82 ] THE COURT: The Crown has asked that Mr. Lamar provide a sample of his DNA. This is a secondary designated offence.

The circumstances of this offence, where he left an unconscious peace officer at the side of the road in a rural area requires that it is in the public interest for a DNA sample to be provided. [ 83 ] Without the evidence from the dashcam, detection of your crime would have been difficult, if not impossible. There is no privacy issue that outweighs the public interest. As a result, you are to provide a sample of your DNA to the RCMP within 48 hours and you are excused from the terms of your conditional sentence order for that purpose. [ 84 ] Do you understand, Mr.

Lamar? [ 85 ] THE ACCUSED LAMAR: Yes. [ 86 ] THE COURT: Now, with respect to the house arrest, I am wondering about the suitability of electronic monitoring. Any

comments? [SUBMISSIONS ON ELECTRONIC MONITORING PROGRAM AT 10:45:22 A.M. TO 10:47:05 A.M.] [ 87 ] THE COURT: All right. I am going to order that if it is suitable, that electronic monitoring be put into place, in addition to all of the other conditions that I have imposed. [ 88 ] MR. CAPUTO: Thank you. [ 89 ] MR. GOLD: Just for clarity, My Lord, is that for the first seven months or for the entire 15 months? [ 90 ] THE COURT: The entire amount of the -- [ 91 ] MR. GOLD: The 15-month house arrest. [ 92 ] THE COURT: -- 15 months house arrest provision. [ 93 ] MR.

GOLD: And the only other clarification I made a note of is you referred to a shopping exception of 10:00 to 1:00 p.m., and I understood you to mean 10:00 a.m. to 1:00 p.m. [ 94 ] THE COURT: That is right. Did I say p.m.? [ 95 ] MR. GOLD: You just said 10. [ 96 ] THE COURT: Ten a.m. to 1:00 p.m. [ 97 ] MR. GOLD: So just for clarity, 10:00 a.m. to 1:00 p.m., thank you. [ 98 ] THE COURT: All right, thank you, Mr. Lamar, you may be seated. [ 99 ] Mr. Leclerc is 47 years of age. He lives on acreage outside Falkland with his wife and children, age nine and 12.

He also supports his 20-year-old son with his post-secondary schooling. [ 100 ] Mr. Leclerc runs two businesses from his farm. Those businesses provide some of the income for his family. [ 101 ] The mitigating circumstances with respect to Mr. Leclerc are as follows: 1) he does not have a criminal record; 2) Mr. Leclerc enjoys strong support in the community. His family depends on his continuing ability to run his business; 3) a guilty plea has been entered, sparing the officer the trauma of testifying to this assault; 4) Mr. Leclerc has abided by the terms of his bail conditions for over two years; and 5) Mr.

Leclerc has expressed remorse. [ 102 ] The aggravating factors are: 1) Mr. Leclerc unreasonably interfered with a peace officer who was in the lawful execution of his duty; 2) Mr. Leclerc was part of a two-on-one attack on a peace officer; and 3) Mr. Leclerc left the scene of the attack, knowing that the peace officer was injured. He left the peace officer unattended at the side of the road in a rural area. [ 103 ] Mr. Leclerc delivered the blows that rendered the police officer unconscious. His moral culpability is greater than Mr. Lamar's, and accordingly his sentence must be more severe.

However, it is a sentence that can be crafted to provide a just outcome within the frame of a conditional sentence order. [ 104 ] Mr.

Leclerc, you are sentenced to a conditional sentence order of two years less a day, the terms of which are as follows: • In addition to the mandatory provisions of the Criminal Code , you shall report to a conditional sentence supervisor today no later than 4:00 p.m., here at the courthouse in Kamloops, and thereafter you shall report as and when directed by your supervisor and in the manner directed by the supervisor; • You shall inform your supervisor of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the supervisor; • You shall have no contact or communication, directly or indirectly, with Paul Koester, unless in the ordinary course of his duties as a peace officer; • For the first 18 months of the conditional sentence order, you shall be under house arrest.

For the first nine months, there will be no relief from the house arrest for the purpose of being absent from your residence for work purposes. That is to ensure that you do not pose a danger to the community;

• You may be outside your residence for one hour each day between the hours of 1:00 p.m. and 2:00 p.m. in order to exercise; • You may be absent from your residence between the hours of 10:00 a.m. and 1:00 p.m. each Saturday, so that you may do your shopping or other activities necessary to get you through the week. During those hours, you must be accompanied by your wife or other such person as approved of in advance by the supervisor; • After the first nine months, you may leave you property for reasons directly related to your business. You must provide, in advance, your supervisor with a weekly

schedule of where you will be, so that the supervisor may contact you at those locations, as set out in your schedule; • Notwithstanding any other provision of this conditional order, you may be absent from your residence or the property upon which it is located for the purposes of attending court, meetings with your supervisor, or for medical emergencies. In the case of medical emergencies, you are permitted only to attend directly to and from a hospital emergency ward.

In addition, you may attend for medical treatment at other times and locations as approved of by your supervisor. [ 105 ] I am going to order that there be -- suitability for electronic monitoring be assessed, and if it can be done then that will be part of the conditional sentence order. • You shall present yourself at the door to your residence at any time that your supervisor or any peace officer attends there for the purpose of determining your compliance with the house arrest conditions of this order; • You shall respond personally and immediately to the telephone when a peace officer or your supervisor makes a telephone call to your residence for the purpose of determining your compliance with the house arrest conditions of this order; • You shall not possess any weapons; • You shall not possess or consume any alcohol or drugs, except as prescribed for you by your physician; • You shall not enter any liquor store, beer and wine store, licensed beverage room, or other business premise where the primary commodity sold is liquor; • You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by your supervisor.

Without limiting the generality of this condition, such assessment, counselling, or program may relate to anger management or alcohol or drug abuse. [ 106 ] Following the completion of the conditional sentence order, you shall be bound by a probation order for a period of two years. The terms of the probation order will be: • In addition to the mandatory provisions, you shall report to a probation officer within 24 hours after completion of the conditional sentence, and after that you shall report as and when directed by the probation officer.

Your reporting to the probation officer will be at an office closest to the place of your residence; • When first reporting to the probation officer, you shall inform him or her of your present residential address and telephone number, and you shall not change your address or telephone number without first obtaining the written consent of the probation officer; • You shall have no contact or communication, directly or indirectly, with Paul Koester, unless in the ordinary course of his duties as a peace officer; • You shall not possess any weapons; • You shall not possess or consume any alcohol or drugs, except as prescribed for you by your physician; • You shall not enter any liquor store, beer and wine store, licensed beverage room, or other business premise where the primary commodity sold is liquor; • You shall attend, participate in, and successfully complete any assessment, counselling, or program as directed by your supervisor.

Without limiting the generality of this condition, such assessment, counselling, or program may relate to anger management or alcohol or drug abuse. [ 107 ] Do you understand the terms of the conditional sentence order? [ 108 ] THE ACCUSED LECLERC: Yes, I do. [ 109 ] THE COURT: Do you understand the terms of your probation order? [ 110 ] THE ACCUSED LECLERC: Yes, I do. [ 111 ] THE COURT: Crown has asked that you provide a sample of your DNA. This is a secondary designated offence.

The circumstances of this offence, where you left an unconscious peace officer at the side of the road in a rural area, requires that it is in the public interest for a DNA sample to be provided. Without the evidence from the dashcam, detection of your crime would have been difficult, if not impossible. There is no privacy issue that outweighs the public interest. [ 112 ] As a result, you are to provide a sample of your DNA to the RCMP in Kamloops within 48 hours, and you are excused from the terms of your conditional sentence order for that purpose.

[ 113 ] Anything further, Mr. Gold? [ 114 ] MR. GOLD: I just wanted to clarify or ensure, you may well have considered it, but my colleague had asked you to consider a no-contact order between the two accused as part of any sentence, and I just want to ensure that you've been alive to that. [ 115 ] THE COURT: I considered that and, under the circumstances, I do not find that it is necessary. [ 116 ] MR. GOLD: Thank you. I think there is an original indictment, too, that is outstanding and we direct a stay on that. [ 117 ] THE COURT: All right. Mr. Campbell, anything further? [ 118 ] MR.

CAMPBELL: I'm not sure if I followed all of the conditions, but Your Lordship had directed Mr. Lamar to -- to take counselling as directed, but I'm not sure if there was an exemption to the house arrest that would allow him to be out of the home. Perhaps that could be dealt with. I'm not sure if there was, but if there wasn't, perhaps that could be dealt with by way of another exception, as authorized by the -- by the conditional sentence supervisor. [ 119 ] THE COURT: Yes. Mr. Jensen? [ 120 ] MR. CAMPBELL: That's all. [ 121 ] MR.

JENSEN: I would ask for the same thing, My Lord. [ 122 ] THE COURT: In both conditional sentence orders, there will be an exemption in the event the supervisor directs either offender to take counselling, in which case the offenders may be absent from their residence only while travelling directly to or returning directly from such assessment or counselling, or while attending the counselling or assessment. [ 123 ] MR. CAMPBELL: Thank you, My Lord. [ 124 ] THE COURT: Anything further? [ 125 ] MR. CAMPBELL: No, My Lord. “S.D. Dley J.” DLEY J.