R. v. Lougheed Date:, 2014 BCPC 267

Citation: R. v. Lougheed Date: 20140715 2014 BCPC 0267 File No: 11430-1 Registry: Fort Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRADLEY DUANE LOUGHEED REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE BRECKNELL Counsel for the Crown: T.A. Livingston Counsel for the Defendant: N.R. Bauder Place of Hearing: Fort Nelson , B.C. Date of Hearing: July 15, 2014

Date of Judgment: July 15, 2014 [1] THE COURT: This is on File Number 11430 in which Bradley Duane Lougheed has pled guilty to a charge of assaultingDarcy Unruh on May 2, 2013, at Fort Nelson. This case is somewhat unusual, thankfully, insofar as it is a matter in which Mr.Lougheed assaulted Mr. Unruh while he was carrying out his duties as a Royal Canadian Mounted Police member. Mr. Lougheed is acorporal in the Royal Canadian Mounted Police with some 12 years of service. [2] On the day in question, Corporal Lougheed and a colleague were on duty.

They received information about ATVs beingoperated near a local liquor store. They arrived on the scene in separate vehicles. Two men were dealt with. The first gentleman wasoperating an ATV that had a rifle in it and had rounds of ammunition that matched that rifle. The second individual was the complainantin this matter, Mr. Unruh, who was arrested by Corporal Lougheed. [3] Mr. Unruh was born on January 7, 1992, and as such, would have been 21 years of age at the time. [4] I am advised that the corporal and Mr.

Unruh had no previous dealings, and as such, there would have been no suggestion ofany animus, one towards the other, prior to that evening. [5] Although there was another constable on scene, that person did not witness the beginning of the dealings between the corporaland Mr. Unruh, but that constable did notice that Mr. Unruh became almost immediately belligerent, and words were uttered by Mr.Unruh to the effect of "I'm going to shoot your wife in the head and kill her." [6] That caused an immediate and somewhat violent response by Corporal Lougheed. He took Mr.

Unruh to the ground andadministered three punches to Mr. Unruh's head. That was witnessed by the constable. [7] Mr. Unruh was then taken to the detachment. While at the detachment, he apologized for the words he had uttered to CorporalLougheed. [8] No injuries were observed on Mr. Unruh at the time, although the Crown has pointed out that later, in a statement to theinvestigating officer in this matter, Mr. Unruh complained about soreness and headaches. There is no suggestion that Mr.

Unruh soughtany medical attention for whatever injuries he was complaining of. [9] The Crown has made it quite clear that from this incident and up till today, Corporal Lougheed has been and in fact not onlyprepared to but is wanting or was wanting to plead guilty to this matter. The delay in sentencing until today was, in part, occasioned bythe very unfortunate and untimely death of his counsel and requiring new counsel to be appointed. [10] The Crown takes the position that this matter requires a conditional discharge. The Crown does not seek a criminal record forCorporal Lougheed.

The Crown says, however, that a conditional discharge is not only appropriate but necessary, relying on the test setout in R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.), that it is clearly in the accused's interest for aconditional discharge to be granted, and it is not contrary to the public interest for a conditional discharge to be granted. [11] The Crown also points out that in this case, a small community like Fort Nelson, that everybody knows where everybody elselives, so a threat uttered by Mr.

Unruh to shoot your wife in the head and kill her is a threat that could be directly aimed at the corporal'sfamily in circumstances where it would be easy for Mr. Unruh to ascertain where the corporal's family resided. [12] On the other hand, says the Crown, the RCMP are expected to behave better than average citizens.

That is because we taskthem with the very difficult, sometimes, circumstances of dealing with people who do not want to be dealt with by them in circumstanceswhere it is either violent or there is a potential for violence and in circumstances where they are dealing with people who sometimes arenot themselves of their right mind due to either a mental defect, a defect caused by substance abuse, or a defect caused by lifestyle. [13] In all the circumstances, the Crown says a conditional discharge with a 12-month period of probation is appropriate.

The termsof that discharge, says the Crown, should be an order that the accused keep the peace, report, advise of their address, take angermanagement counselling, and apologize in writing to Mr.

Unruh. [14] The Crown is not seeking a DNA order nor is the Crown seeking a s. 110 firearms prohibition. [15] I agree with the Crown that the first order is not necessary in these circumstances given that there is no history whatsoever ofany criminal behaviour by the accused, and clearly, a s. 110 order would effectively curtail Corporal Lougheed's ability to conduct hisduties as an RCMP officer because it would restrict his possession of firearms. [16] Defence counsel provided a number of documents which have been marked as exhibits in this matter.

They include what canonly be described, in Exhibit 1, as a full and frank disclosure by Corporal Lougheed of both what occurred, his acceptance ofresponsibility for it, and the nature of the punishment that he is subject to or has already been subjected to by his employer, the RCMP. He was suspended from active duty for eight months and placed on administrative duty. He is dealing with a conviction under theRCMP Act.

He may be subject to various other forms of penalty as part of the internal process in the RCMP which might affect hisability to be transferred, to be promoted - in fact, he could be demoted - and it may also restrict other things that he wishes to do as part ofhis career. [17] It is clear from that letter marked as Exhibit 1 that Corporal Lougheed is and has been highly involved in the community of FortNelson in a social context. [18] There were also six letters of reference provided to the court on behalf of Corporal Lougheed.

All of those letters of reference,with the exception of two, come from fellow members of the RCMP. All of them set forth their high regard for Corporal Lougheed both

as a person and as a member of the RCMP in the conduct of his duties. The other two letters of reference are from members of the community, one a store manager here in the community and the other a fleet manager for a transportation company. Both of them, although brief, set out their knowledge of Corporal Lougheed as, first of all, an excellent citizen; second of all, an excellent police officer; and third of all, the person who accepts responsibility unreservedly for his bad behaviour on May 2, 2013. [ 19 ] I agree with Mr.

Bauder that, in general, Corporal Lougheed is an upstanding member of the community and a fine police officer, but I also accept what Mr. Bauder says insofar as him having a significant lapse of judgment on May 2, 2013. [ 20 ] In the face of all of that, Mr. Bauder submits that his client should receive an absolute discharge. He wishes to put this matter behind him and get on with his career, whatever that might be in the face of whatever other disciplinary steps may be taken by the RCMP. [ 21 ] Mr. Bauder has provided some case law. R. v. Fallofield of course I have already referred to.

The other two cases referred to the court are the cases of R. v. Klassen , 2011 BCPC 109 , a decision of my sister Judge Werier, and R. v. Lambert , 2010 BCPC 151 , a decision of my brother Judge Gardner. [ 22 ] In the Lambert case, Mr. Lambert was an RCMP officer who assaulted a person who was in his custody. That person was uninjured but the nature of the assault was such that charges were laid. In that case, like here, Constable Lambert had a number of letters of support from fellow members of the RCMP. [ 23 ] At paragraph 10 of Lambert , Judge Gardner says as follows: [10] It would be unfair, as Mr.

Harris has pointed out, to define and characterize his career by this one unfortunate incident and one momentary lapse of judgment. This incident should be viewed in the context of his entire career.

I am about to sentence someone who continues to not only receive the support of his fellow officers, but he has also been actively involved in a youth hockey program since 2006 which assists local high school students who are at risk. [ 24 ] Much the same can be said of Corporal Lougheed in this community. [ 25 ] The second case referred to is the case of Klassen , and I would say immediately that the Klassen case is much different than the case before me because in the Klassen case, Klassen , who was a police officer, along with one Gillan, who was also a police officer, were involved in what can only be described as a very serious assault of a middle-aged I believe he was a newspaper distributing person outside a major hotel in downtown Vancouver in which the complainant was injured but in which Mr.

Klassen participated to a much lesser extent than Mr. Gillan. There was a trial in that matter, and at the end of the trial, Judge Werier found Mr. Klassen guilty of the assault of Mr.

Khan. [ 26 ] There was what can only be described as a vigorous argument between counsel in their submissions as to the appropriate penalty, with many cases being provided to the court. [ 27 ] At the end of the day, Judge Werier covered off all of the required commentary concerning the cases, referred to the appropriate sections of the Criminal Code , namely, ss. 718 through 718.2, and I adopt much of what she had to say in paragraphs 36 and 38 of her decision concerning the appropriate mitigating and aggravating factors the court must take into account in applying the provisions of the Criminal Code to sentencing, which is a very unique process. [ 28 ] Although cases can provide guidance to a sentencing judge, at the end of the day, the court must apply the provisions of the Code and the applicable case law in determining, based on the facts of the case, what the appropriate penalty is in any particular circumstance. [ 29 ] Mr.

Lougheed, please stand up, sir. [ 30 ] After having considered all of the submissions of counsel and the facts put before me, in my view, it would be appropriate for you to be granted a discharge. I think it is in your best interest to be granted a discharge, and it is not contrary to the public interest. However, I disagree with both the Crown and defence as to the nature of that discharge and the length of it.

I disagree with your counsel because I think a conditional discharge is necessary here, and in doing so, I rely on the statement made by Judge Werier in the Klassen case at paragraph 42 where it says: [42] However, I am satisfied that an absolute discharge is also not the appropriate disposition in this case either. An absolute discharge would not be a sufficient consequence to reflect the public concern about Klassen's conduct or to deter others in similar circumstances. [ 31 ] However, I do not agree with the Crown either that it is necessary for you to be on a conditional discharge for a period of 12 months.

In my view, a period of six months is more than appropriate in these circumstances, and I am going to do so. [ 32 ] I am going to impose the following terms and conditions. [ 33 ] Now, Mr. Clerk, you realize we are using the old precedents. [ 34 ] THE CLERK: Yes, Your Honour. [ 35 ] THE COURT: We are not using the new ones --

[ 36 ] THE CLERK: Yes, Your Honour. [ 37 ] THE COURT: Okay. So the terms of your probation order, which will be for six months, will be as follows. [ 38 ] You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court. You shall notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 39 ] Those are statutory requirements, sir. [ 40 ] 101P. I guess before we do this, is there a probation officer in the community today, Mr.

Bauder? [ 41 ] MR. BAUDER: Yes, Your Honour. [ 42 ] THE COURT: Okay. Is there going to be one tomorrow, because we won't get this done in time for 4 o'clock. [ 43 ] MR. BAUDER: I believe so, Your Honour, yes. [ 44 ] THE COURT: Okay. You shall report in person to the probation officer no later than 4 p.m. on Wednesday, July 16, 2014, at the probation office here in Fort Nelson, and after that, you shall only report as directed elsewhere in this order. [ 45 ] 105P.

When first reporting to the probation officer, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first providing written notice to the probation officer. [ 46 ] The next term I am going to dictate, Mr.

Clerk. [ 47 ] You shall provide a letter to the probation officer no later than August 31, 2014, signed by the psychologist you are meeting with, which letter shall set out the dates and duration of the sessions you have participated with the psychologist and the anticipated end date of such counselling, if that is available. It is not required of the psychologist to provide details of what was spoken of at these sessions. [ 48 ] Now, I stop there just for a moment. Mr.

Livingston, if indeed he is attending upon a psychologist, the psychologist has a professional duty, of course, to counsel in the appropriate fashion as set out in the Psychologists Act . I think that probably is a higher standard than we would expect of a probation officer, so I want the probation officer to know that he has been going and whether it is once a week or once a month, a half hour or two hours per session, but I do not require the psychologist to provide information to the probation officer about the nature of the counselling. [ 49 ] MR. LIVINGSTON: Yes, Your Honour. [ 50 ] THE COURT: Thank you.

Now, the second part, Mr. Clerk, is number 146P. Subject to the wishes of Darcy Unruh, you shall participate in a victim-offender reconciliation meeting under the supervision and direction of your probation officer. I do not know whether Mr. Unruh can be found. I do not know if you have already apologized to him, but if you have not, we are going to try to arrange it, if he wants to participate, and it can be nothing more or nothing else than you sitting down with him and saying what you have said in all this material already. Okay? [ 51 ] Then that being the case, Mr.

Livingston, I do not intend to require Corporal Lougheed to write a letter of apology. [ 52 ] MR. LIVINGSTON: With respect, Your Honour, I think what Your Honour suggested probably makes better sense. [ 53 ] THE COURT: Yes. Okay. Those are the terms of the probation order, Corporal. They will be typed up by the clerk of the court at some point. I will excuse you till tomorrow at -- please be here before noon to sign the probation order and then report to probation by 4 o'clock tomorrow. I won't keep you here because we have other cases to do and the clerk will be here late enough as it is. (REASONS CONCLUDED)