R. v. Shipley et al Date:, 2015 BCPC 276

Citation: R. v. Shipley et al Date: 20150930 2015 BCPC 0276 File No: 12035-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. BRUCE MARTIN SHIPLEY ALFRED WAI YIP WONG EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: C. Konkin (AS Agent for L.R. Yip) Counsel for the Accused Shipley: D.G. Butcher, Q.C. Counsel for the Accused Wong: M.K. Woodall.

Place of Hearing: Vancouver, B.C. Date of Hearing: September 30, 2015 Date of Judgment: September 30, 2015 [1] THE COURT: On May 29th, 2015, the accused were convicted of assaulting Jordan Dyck contrary to s. 266 of the CriminalCode. A sentencing hearing was held and the matter was adjourned to today for sentencing and reasons therefor. Background [2] The accused are police officers employed by the South Coast British Columbia Transportation Authority Police Service. OnFebruary 9th, 2012, they were working in plainclothes and at the Granville Street SkyTrain station.

While there, information wasreceived about a person causing a disturbance. The accused began to investigate and they spotted Mr. Dyck who was sitting peacefullyon the stairs playing a game on his phone. Subsequent video evidence confirmed Mr. Dyck had not been causing a disturbance. Thisfact was unknown to the accused at the time. [3] The accused approached Mr. Dyck, obtained his name and date of birth. While Mr. Dyck's name was being checked, he got tohis feet with the intention of going to a ticket vending machine. Shortly after getting to his feet and while stationary, Mr. Wongforcefully took hold of Mr.

Dyck's right arm near the bicep. Mr. Shipley immediately stepped forward and took hold of Mr. Dyck's leftarm. Mr. Dyck tried to pull away and the accused responded by escalating the level of force they were using. They physically directedMr. Dyck to a wall. [4] What followed was a struggle between the parties wherein Mr. Dyck received knee strikes, he was taken to the ground, hisfingers were bent backwards, he was pepper-sprayed with OC spray, and he was ultimately handcuffed. As a result, Mr.

Dyck sufferedirritated and painful eyes, headaches, and a sore hand which lasted for a number of days and required him to miss a few days of work. Ialso expect the events caused him some emotional stress. Personal Circumstances of Mr. Shipley [5] Mr. Shipley is 52 years old. He is married and he has worked in law enforcement since 1998. He first worked for the BritishColumbia Sheriff Service and, in 2007, he became employed with the South Coast British Columbia Transportation Authority PoliceServices as a police officer. [6] Several letters were filed on behalf of Mr. Shipley. These letters speak of Mr.

Shipley's peaceful demeanour, his involvementin the police community, and his giving to others. It is noteworthy that some of the letters were from fellow officers and supervisors. Insummary, the letters support a conclusion that what happened with Mr. Dyck was a momentary lapse of judgment and uncharacteristic ofMr. Shipley's overall performance as a peace officer. Personal Circumstances of Mr. Wong [7] Mr. Wong is 39 years old. He is married and has a young child. Prior to becoming a police officer, he was a sheriff with theB.C. Sheriff Service.

As a police officer, he received a commendation for his peaceful handling of a person with a sword. [8] A number of letters were filed on Mr. Wong's behalf. These letters are from friends, colleagues, and supervisors. The lettersspeak to Mr. Wong's good character, his performance as a police officer, and how he appears to have learned from the long courtprocess. Like Mr. Shipley, the letters support a conclusion that what happened with Mr. Dyck was a momentary lapse of judgment and itwas uncharacteristic for Mr. Wong's overall police performance.

Submissions by the Crown [9] The Crown argues a fit and appropriate sentence is incarceration in the range of 30 to 60 days. It is the Crown's position thatthe sentence is warranted as the accused breached the public trust and their conduct had the aggravating feature of efforts to cover up andconceal what transpired. [10] In support, the Crown relies on R. v. Schertzer, 2015 ONCA 259; R. v. Robinson, 2012 BCSC 1134; R. v. Greenhalgh, 2011BCSC 511; R. v. Cook, 2010 ONSC 5016 , [2010] O.J. No. 4414; R. v. Nixon, [1991] B.C.J. No. 486; R. v. Kelly, [2012] N.J.No. 111; R. v. Preston, 2008 ONCA 530; R. v.

Rosa, [2011] O.J. No. 3147; R. v. Webster, [2014] N.J. No. 334; R. v. Forget, [1983] O.J.No. 1381; and R. v. Gillan, [2009] B.C.J. No. 1528. [11] Interestingly, all of the cases cited by the Crown involve a finding that there had been a cover-up or an attempt at interferingwith justice. Not one of the cases dealt with the sentencing of an officer on a single allegation of assault. [12] If this court were to sentence as the Crown urges, that is, on the basis of an aggravating fact that the accused engaged in acover-up or attempted to interfere with justice, then this court would fall into error.

This is because the evidence did not prove beyond areasonable doubt that the accused engaged in a cover-up or attempted to interfere with justice. As such, and according to s. 724 of theCriminal Code, this court cannot factor Crown's unproven suspicions into the sentencing matrix. Submission by the Defence

[13] Counsel for the accuseds submit a fit and appropriate sentence is to discharge the accused absolutely. In support, counselemphasizes the accused's good character, the duration of these matters, that the accused have suffered a loss of pay, that they have shownremorse, and although any assault is serious, the conduct in this case is at the lower end of the spectrum. [14] In support, the defence relies on the following authorities: R. v. Cronmiller et al, 2004 BCPC 1 , 2004 BCPC 001; R.v. Reddy, 2007 BCPC 401 , 2007 BCPC 0401; R. v. Tsui, 2008 BCPC 155, R. v. Klassen, 2011 BCPC 109; and R. v.

Sweet,2007 BCPC 240 , 2007 BCPC 0240. [15] A review of the authorities supports the proposition that a discharge is available in the circumstances of a police officercommitting the offence of assault. Principles of Sentencing [16]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing and the objectives to which the purposes maybe achieved. 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...; (

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. [17]

Section 718.1 sets out a fundamental principle of sentencing. In this regard, any sentence imposed must be proportionate to thegravity of the offence and the degree of offender responsibility. Accordingly, this court must impose a sentence that is proportional tothe seriousness of the offence and the degree of offender responsibility. [18]

Section 718.2 requires a sentencing court to also consider the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender ... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances ... should be considered for all offenders,with particular attention to the circumstances of Aboriginal offenders.

Sentencing [19] In the circumstances of the instant case, denunciation and general deterrence are the paramount sentencing objectives; that is,through the sentence that this court imposes, this court is tasked with expressing society's abhorrence and send a message to otherofficers that assaultive conduct will result in consequences. [20] It must be recognized police officers are cloaked with powers that are intended to assist in the execution of their duties. Onesuch example is the authority to use force. Police officers must not misuse their powers in the name of performing one's duties.

Whenthe powers are misused, it is a serious matter and it is a breach of the public's confidence and trust. For these reasons, offencescommitted by police officers are viewed as a breach of trust and attract a more serious sentence. [21] This principle was stated in the oft-cited case from the Nova Scotia Supreme Court of R. v. Cusack (1978),

(NS CA), 41 C.C.C. (2d) 289, at page 293, I quote: ... the paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who aregiven special authority by our law to deal with individual members of society, and to deter such persons from acting in breach of theirtrust. ... 14 The commission of offences by police officers has been considered on numerous occasions by the courts, and the unanimousfinding has been that their sentence should be more severe than that of an ordinary person who commits the same crime because of theposition of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration. [22] The court acknowledges that the requisite amount of denunciation and deterrence is somewhat tampered by the accused havingappeared in court and going through the justice system; that is, the very engagement of the justice system sends a message of deterrenceand denunciation to other offenders. [23] A further objective of any sentence imposed is that it should provide reparation for the harm done to the community.

Theoffence occurred in a public place, it was videotaped by the public, and ultimately posted on social media. Accordingly, there is a needto give back to the community and repair the public harm that has occurred. [24] Turning to the issue of proportionality, I find although the assault was at the lower end of the spectrum, I find the seriousness ofthe assault to be slightly amplified given the chain of events that followed. In this regard, I refer to the struggle, the knee strikes, thepepper spraying, and the bending of Mr. Dyck's fingers.

With respect to the accused's degree of responsibility, I note the offence wasnot driven by malice or ill-will. I also note the context within which the offence occurred and it appears to have been driven by amomentary lapse of judgment by both of the accused. Aggravating and Mitigating Circumstances [25] It is aggravating that the accused were working as police officers when they committed the offence. I have not adjusted thesentence with this fact in mind because it is a fact considered in recognizing that police officers generally receive harsher sentences.

Toconsider their status again when adjusting the appropriate sentence would, in essence, result in double punishing the accused. [26] There are several mitigating factors. The accused have no criminal history, they are highly regarded by those that know them,and they have expressed remorse for their conduct. I also recognize that they have been reassigned and, as a result, have sufferedfinancial consequences. [27] The defence argues the media attention is mitigating. With respect, I do not agree. Canadians embrace an open and transparentjustice system.

To this end, those charged with offences, particularly those who are public officials, will attract media attention. Mediaattention and reporting is a necessary and important component of maintaining the public's trust in the administration of justice. In R. v.Sweet, 2007 BCPC 240 , 2007 BCPC 0240, the Honourable Judge Weitzel commented on media coverage and police officers.

In this regard, he stated the following at paragraphs 27 to 28: 27 The defence argues that extensive media coverage of this case and the resultant shame and embarrassment that has been caused toSweet and his family should be considered to be a mitigating factor.

The law is clear that the notoriety caused by widespread mediacoverage can in certain circumstances be a mitigating factor, but in a case such as this where the offender is a police officer and theperson assaulted a member of the public, the public should know and must rely upon the media for that knowledge. 28 In many other situations where the offender is a member of the public, it is my view that the police often hold press conferencesto announce the charges and the identity of the offender. The police court that publicity.

When one of their own is charged, they mustexpect that same media scrutiny and exposure and all that flows from it. Constable Sweet should expect public notoriety when he kicks aman lying in handcuffs on the ground in the head. Any shame attached comes from the commission of the crime and not the fact that thecrime has been found out. Accordingly, in this case, I do not consider this to be a mitigating factor.

Conclusion [28] After a careful review and after considering all the circumstances, it is my view that the imposition of a custodial sentencewould be disproportionate to the required amount of denunciation and deterrence; further, such a sentence would not address the harmcaused to the community; and finally, such a sentence would be disproportionate to the gravity of the offence or the degree of offenderresponsibility. [29] I am also of a view that a custodial sentence would be contrary to s. 718.2 of the Criminal Code.

I say this because, in my view,there are sanctions other than imprisonment that are reasonable in the circumstances of this case and imprisonment does not comply withbeing the least restrictive sanction available. [30] With respect to defence counsel's submission that an absolute discharge would be a fit and appropriate sentence, it is this court'sview that an absolute discharge would be in the accused's interest, but that such a result would not adequately address denunciation anddeterrence, nor would it provide some reparations to the community for the harm caused. [31] Having said that the court appreciates that denunciation and deterrence may be achieved through the imposition of a conditional

discharge and, even though denunciation and deterrence are the sentencing objectives, courts should not avoid the judicious use of thedischarge provisions, see R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.). [32] I find the purposes and principles of sentencing demanded by the facts and circumstances before this court can be addressed bythe imposition of a conditional discharge. I also find that such a disposition is in the accused's best interests and not contrary to thepublic interest.

As such and pursuant to s. 730 of the Criminal Code, the accused will be conditionally discharged. [33] The terms and conditions of the discharge are as follows.

First, the length of the term will be for four months. [34] During that period of time, they must comply with the following terms and conditions. [35] Keep the peace and be of good behaviour. [36] Appear before the court when required to do so by the court. [37] Notify the court or probation officer in advance of any change of name or address, and promptly notify the court or probationofficer of any change of employment or occupation. [38] You must report by no later than 4:00 p.m. today, Wednesday, September 30th, 2015, to a probation officer at 275 East CordovaStreet, B.C., and thereafter as and when directed by the probation officer, but only for the purposes of directing you to community workservice and ensuring your completion of your community work service. [39] You must complete 25 hours of community work service.

Such community work service must be completed at the direction andto the satisfaction of your probation officer and must be completed on or before February 20th, 2016. [40] Lastly, there is the issue of the victim fine surcharge. In the circumstances of this case, I note the large financial impact felt byboth accused. I note the source of funding for the monies that they would have received was from the public purse in that they were notpaid in overtime and, in this case, I will utilize my discretion and the victim fine surcharge is waived. [41] MR.

BUTCHER: Thank you, Your Honour, and I apologize for being late. [42] THE COURT: Oh, that is fine, Mr. Butcher. [43] THE CLERK: Your Honour, the community work service is to be completed by February 2016. [44] THE COURT: Yes, if I said 15, it was in error, obviously. Thank you. [REASONS FOR SENTENCE CONCLUDED]