R. v. Klassen Date:, 2011 BCPC 109

Citation: R. v. Klassen Date: 20110610 2011 BCPC 0109 File No: 205441-2 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEFFREY KLASSEN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE JODIE WERIER Counsel for the Crown: Ellen Leno Counsel for the Defendant: Dwight M. Stewart Place of Hearing: Vancouver , B.C. Date of Hearing: May 10, 2011 Date of Judgment: June 10, 2011 INTRODUCTION: [ 1 ] On April 5, 2011, after a lengthy trial, I convicted Jeffrey Klassen of the January 21, 2009 assault of Firoz Khan.

At the time of the assault Klassen was an off duty probationary Constable with the New Westminster Police Service. GILLAN SENTENCING: [ 2 ] Griffin Gillan, another off duty Constable, was also involved in the assault of Mr. Khan. He claims to be unable to recall anything that happened after he and Klassen and their friend Blair Tanino arrived downtown on April 4, 2009 for a night of socializing and drinking. He pled guilty to his participation in the assault. Gillan assaulted Khan, who was unknown to him, without provocation.

During the assault Gillan kicked Khan all over his body, including kicks to the stomach and the head. Gillan told Khan during this assault that he was under arrest.

[ 3 ] Gillan, who was 24 at the time of the sentencing, did not have a criminal record. He was sentenced on July 29, 2009 to a 21 day conditional sentence order followed by 6 months probation. The Crown was seeking a sentence of 4 to 6 months real jail and Defence was seeking a conditional discharge. Since the time of this assault Gillan has received counselling and no longer drinks alcohol. CROWN POSITION ON SENTENCING: [ 4 ] Crown counsel argues that a jail sentence is required for Klassen in order to meet the principles of sentencing.

She submits that a jail sentence in the range of 30 - 60 days is a fit and appropriate sentence in all of the circumstances. Crown acknowledges that a conditional sentence order may be an available alternative sentence, but suggests that the sentencing principles of denunciation and deterrence will not be met if Klassen is allowed to serve his jail sentence in the community. Crown relies on 12 case authorities to support her submission that a jail sentence is appropriate and necessary.

They are attached as Appendix A to these reasons, and though I will not refer to all of them in these reasons, I have read them all. As assault is a secondary designated offence, the Crown has asked that I exercise my discretion and require that Klassen provide a sample of his DNA pursuant to

section 487.051 of the Criminal Code . DEFENCE POSITION ON SENTENCING : [ 5 ] Defence counsel submits that the appropriate sentence for Klassen is a discharge, either absolute or conditional. He argues that a discharge is the appropriate sanction in the circumstances of this case and will achieve the goals of deterring Klassen and others and in denouncing his conduct. Defence has relied on 26 cases to support his position. They are attached as Appendix B to these reasons, and I have read them all.

He argues that requiring Klassen to provide a sample of his DNA in this case would be contrary to Klassen’s privacy interests and disproportionate to the gravity of the offence. FINDING OF FACTS: [ 6 ] I do not intend to review all of the comprehensive findings of fact that were outlined in detail in my reasons for judgment. I will summarize some of the findings which are particularly relevant to the issue of sentencing: - Griffin Gillan, Blair Tanino and Jeffrey Klassen, were all off duty police constables on January 21, 2009. They enjoyed a social evening together and all three consumed alcohol.

Gillan estimates that he drank between 20 – 25 drinks over six hours. - At some point in the early morning Gillan became separated from Tanino and Klassen and ended up at the Hyatt. - Without provocation Gillan assaulted Khan, who was unknown to him. During the assault Gillan kicked Khan in the stomach, causing him to fall onto the concrete. Gillan then kicked Khan all over, including in the head. Gillan told Khan during this assault that he was under arrest. He held Khan on the ground with the use of his foot. - Klassen and Tanino arrived at the Hyatt in a cab to join Gillan.

Klassen was uncertain what had transpired prior to his arrival. When he arrived he initially saw Khan and Gillan standing up with their hands on each other’s shoulders. Klassen observed that Khan walked or pushed Gillan back two steps. - Klassen next saw Khan lying on the pavement face up, with Gillan and Tanino standing twelve to fifteen feet away.

Klassen, who was intoxicated, formed the belief, based on his very limited observations, that what he had just witnessed was an assault in progress, and that Khan was the aggressor. - As soon as he perceived some movement by Khan, Klassen formed the mistaken belief that Khan was attempting to renew the perceived assaultive behavior and made a split second drunken decision to intervene. In doing so he utilized his police training.

Before Klassen made physical contact with Khan he did not identify himself as a police officer, but he issued the “police like” command for Khan to stay down. - Klassen got on top of Kahn and forced him into a “side mount” position by grabbing his hip and shoulder and flipping him over onto his stomach on the concrete to place Khan into a secure “handcuff position”. Klassen immediately secured Khan’s left arm. Klassen then commanded Khan to get his right arm out from his body, preferably palm up, so that Khan would be in a position of disadvantage.

Klassen hit Khan on the shoulder multiple times, but he did so as a means of indicating to Khan which hand he was asking Khan to put out while instructing Khan “get your arm out”. He buried his knees at various times in Khan’s back and shoulder area. He also applied force to Khan to get him to cross his legs. - During the assault of Khan, Klassen was heard to say “cross your feet”, “do as I say and you won’t get hurt” and “put your hands out”. At some point he did identify himself as a police officer. - [When Klassen hit Khan in the shoulder this was more force than the tap that he had been trained to use.

He employed police maneuvers and applied force, which when viewed objectively was more than was necessary or reasonable in the circumstances. - Due to his intoxication, Klassen’s judgment at the time of the assault was not as sound as it would have been had he been sober. - The paramedic who arrived at the scene to assist Khan confirmed that Khan had no medical complaints or visible injuries after the assault, with the exception of a sore wrist where handcuffs had left an abrasion.

Khan testified that the injuries he sustained as a result of the assault by Gillan and Klassen was some bruising, a chipped tooth and a concussion. No medical evidence of these injuries was provided. VICTIM IMPACT STATEMENTS:

[ 7 ] Detailed Victim Impact Statements from Khan and his wife dated July 14, 2009 were filed by the Crown and marked as Exhibit 1. These statements outline the profound effects that the actions of Klassen and Gillan had on the Khan family at that time. They did not distinguish between the impact of Gillan’s actions and the impact of Klassen’s actions. Unfortunately, no updated information was provided by the Crown at this sentencing hearing which has taken place more than two years after the assault.

CROWN ARGUMENT: [ 8 ] Crown argues that although Klassen was not aware of what happened before he intervened, what he did by entering the fray was to make an already bad situation worse. Khan was initially the victim of an unprovoked assault by Gillan, and this was followed by the unlawful and forceful attempt made by Klassen to arrest Khan. As Klassen is a police officer, even though he was off duty and intoxicated, Crown argues that the law requires that he receive a harsher sentence than a civilian would.

As Klassen identified himself as a police officer and employed police techniques in effecting this unlawful arrest, she argues that this ought to be considered to be an aggravating circumstance. She points out that by identifying himself as a police officer during the course of this assault, Khan would have believed that he was required to comply with all of Klassen’s requests due to the need to respect police authority. [ 9 ] Crown submits that it is necessary to sentence Klassen to jail as a significant sentence must be imposed on Klassen in order to achieve the principle of deterrence.

A clear message must be sent to other officers that an assault caused by an unlawful arrest is unacceptable and will not be tolerated by the public.

While acknowledging that the assault committed by Gillan was different in nature and more violent than the one committed by Klassen, Crown argues that Klassen ought to be sentenced to real jail because of his attempt to conduct an unlawful arrest. [ 10 ] It was also argued by Crown that a jail sentence is necessary in order to send a message to Klassen and other officers of the importance of educating themselves so that they will understand more fully their lawful authority. In this way a situation such as this one, which resulted in an unlawful arrest, will be avoided in the future.

Crown submits that it is especially necessary to denounce this conduct in order to send a clear message to the police that an abuse of police authority, which strikes at the heart of the confidence of the public in the police, will result in a jail sentence.

Although often in these cases an officer will have employment consequences, personal consequences, and media attention, Crown submits that the court must not over emphasize those consequences when determining a fit punishment as this is the only way to ensure that the public continues to have respect for the justice system. [ 11 ] Crown acknowledges that a conditional sentence order is an available sentencing option for this offence, but suggests that a conditional sentence order in the circumstances of this case is inconsistent with the purpose and principles of sentencing set out in sections 718 and 718.2 of the Criminal Code .

She argues against a conditional discharge indicating that it is incapable of meeting the primary and imperative sentencing goals of deterrence and denunciation. [ 12 ] The Crown outlined that the following aggravating factors to be considered by me in sentencing Klassen: - S. 718(a)(iii) of the Criminal Code is a statutory aggravating factor – breach of trust or authority. Klassen was and is a police officer and he identified himself as a police officer during the incident.

By identifying himself as a police officer he discouraged others at the scene from getting involved; - Although he had only been an officer for about one and half years, he was older and had more policing experience than his friends Gillan and Tanino; - Klassen had no lawful authority for his actions and effected an unlawful arrest on an innocent citizen; - This assault followed the assault by Gillan, which further prolonged the ordeal for Khan.

Klassen then assisted the Vancouver Police Department in wrongfully handcuffing and detaining Khan; - The arrest was forceful and the hits to the shoulder were beyond what is considered to be a proper use of force; - Klassen continued with his actions despite the many signs from Khan, the bystanders and Gillan, which warranted a re-evaluation of the situation; - Klassen was uncooperative with the police and did not provide a statement; - Klassen had been a civilian instructor in the area of use of force at the Justice Institute and had special knowledge in the area of use of force; - Klassen’s behavior at the scene towards Constable Jaswal was inappropriate. [ 13 ] The Crown outlined that the following mitigating factors be considered by me in sentencing Klassen: - The lack of a criminal record; - The personal and professional consequences that Klassen has already experienced. [ 14 ] Crown argues that Klassen’s expression of remorse should not be considered a mitigating factor as during his testimony at trial he did not take responsibility for the assault or provide a sincere expression of remorse for his actions. [ 15 ] Crown seeks to distinguish the majority of the cases relied on by Defence counsel by pointing out that many of the cases where conditional discharges were provided to police officers were dated, there were guilty pleas, the injuries were minor, there was

provocation by the victim, there was an expression of genuine remorse, and proactive steps were taken towards rehabilitation. [ 16 ] Crown is seeking DNA order pursuant to

section 487.051 of the Criminal Code . She provided no submissions to support the request that I exercise my discretion indicating only that it is appropriate in the circumstances. DEFENCE ARGUMENT: [ 17 ] Defence counsel has submitted that the appropriate sentence for Klassen should be either an absolute or conditional discharge. He argues that the principles of specific and general deterrence and denunciation have already been achieved to a great extent during the 28 months since this offence occurred.

He points to the intense and continual media coverage of the incident, which has had significant consequences to Klassen and argues that in a case such as this, where the principals of sentencing have already been addressed through the media, that a discharge is appropriate. ( Jackman ; Kidd ; G. ( V.M. ); Kitos ) [ 18 ] Defence has highlighted the findings of fact made at trial and agrees that while the facts supported a conviction of assault, he seeks to distinguish the actions of Klassen from the more serious actions of Gillan.

The findings that he seeks to rely on are: [102] “…he made a split second drunken decision to intervene and was then later required to rationalize that decision in the sober light of day.” [105] “…Klassen applied more force than the “tap” that Inspector Keith testified that a police officer should use to indicate to a suspect which arm to put out. However, the evidence of the 911 tape is compelling. Klassen is heard to repeatedly instruct Khan to get his “hand out” and to tell Khan “do as I say and you won’t be hurt.”...

I accept that Klassen hit Khan repeatedly on the shoulder, but that he did so as a means of indicating to Khan which hand he was to put out.” [110] “…I accept that in his intoxicated state Klassen formed the belief, based on his very limited observations, that what he just witnessed was an assault in progress and that Khan was the aggressor…” [112] “…as soon as Klassen perceived some movement by Khan, he formed the belief that Khan was attempting to renew the perceived assaultive behavior and so he immediately took physical steps to prevent this.” [139] “…Klassen’s physical interactions with Khan appeared to be an attempt not to simply detain Khan, but rather to conduct a de facto arrest.

He employed police maneuvers and applied force which when viewed objectively was more than was necessary or reasonable in the circumstances.” [ 19 ] Defence argues that given these findings, it is important that the sentence reflect that Klassen, who was off duty, encountered an unexpected situation and reacted in the heat of the moment, while his judgment was impaired by alcohol. [ 20 ] Defence counsel has also reminded me that during the assault, when Gillan attempted to resume his physical attack on Khan, Klassen took the initiative to tell Gillan to “back off”.

Klassen also dissuaded Gillan from further inappropriate behaviour after the police arrived. [ 21 ] Defence has also emphasized that the evidence at trial regarding Khan’s injuries, and who caused them was inconclusive. It was Gillan who kicked Khan in the stomach, causing him to fall to the concrete, and it was Gillan that kicked Khan all over, including on his head.

In contrast, Klassen’s actions were more measured and were directed at attempting to complete what he believed at the time to be a lawful arrest, while uttering the command to “do as I say and you won’t be hurt.” [ 22 ] Defence counsel has provided significant detail concerning how, since the assault of Khan in January 2009, Klassen has already endured considerable consequences: - he spent one day in jail after his arrest; - on the following day he was suspended from duty by the New Westminster Police Service with pay, and after 28 months he remains suspended from duty.

On April 20, 2011, he was placed on unpaid suspension.

He has yet to participate in any disciplinary proceedings as they have been delayed pending the outcome of this trial; - his suspension, (when it was with pay), resulted in significant financial consequences to Klassen as he has been ineligible to be paid overtime or to qualify for a promotion or advancement, and has been unable to supplement his income as a use of force instructor, resulting in a lost opportunity to earn income estimated to amount to at least $39,000; - Klassen has been personally responsible for his legal expenses related to this trial; - on February 23, 2010, Klassen’s previous lawyer was appointed to the bench and as a result his original trial dates in March, 2010 were lost and he had to wait an additional 6 ½ months for the matter to proceed to trial. - Klassen began to receive threats about a month or two after the incident.

These threats initially took the form of three notes left on his car. He made the decision to move from his rented apartment because of a concern for the safety of his children who he visited with in his home. - K lassen is routinely approached by strangers, who recognize him because of the extensive media coverage. They confront him about his involvement in the events of January 21, 2009. Some make comments to the effect that they would like to “take him out”. As a result of these regular encounters Klassen no longer goes out socially very often.

While he has not stopped drinking entirely, he has curtailed his consumption of alcohol. - In the summer of 2009 there was a posting on Craigslist seeking a $1,000 reward for anyone who could provide Klassen’s home address and suggesting that there was a need that Klassen be “taken care of”. These threats made it difficult for Klassen to spend time

with his children. - On the evening of October 21, 2010, during the trial and while Klassen was to be on the stand testifying, the New Westminster Police Service received a “Crimestoppers” tip to the effect that certain members of Lower Mainland organized crime were planning to “take – out” a police officer in court and that they knew where he was going to be on October 22, 2010. The Police took the threat seriously, in part because of the level of detail of the tip as well as the level of media attention given to the case, and because of the previous threats.

The police attended at Klassen’s residence at about midnight to advise him of the threat. Klassen did not sleep at all that night. He was provided a “ballistic bullet proof vest” which he wore on October 22 nd while testifying. He was escorted to court by the police and two Vancouver Police Department officers remained in the courtroom for the day. After the adjournment on October 22 nd Klassen did not return home, but lived in a motel at his own expense.

With the passage of time and no further threats, he has returned home. - Klassen voluntarily engaged in a therapeutic relationship with a psychologist in February 2009 and by December 2009, was diagnosed with a major clinical depression and anxiety. He was referred to a psychiatrist and prescribed anti-depressants. He now takes naturopathic remedies for his depression. - Following the adjournment of the trial in October 2010, Klassen was experiencing considerable stress and difficulties coping.

His birth mother, who is a psychologist in Australia, was able to make arrangements and to assist him in attending an intensive course of counseling at a private therapeutic facility there. He attended residential treatment from December 3, 2010 to December 18 th , 2010 and again from March 7, 2011 to April 3, 2011. - The media reported some allegations, which were partially attributed to Klassen, and which were ultimately unsubstantiated. These included a suggestion that one of the officers made racist comments and another threatened to use a taser.

The allegations of racism were particularly difficult for Klassen who comes from an adoptive mixed race family. - Khan commenced a civil action against Klassen on January 14, 2011, and Klassen is now defending this claim. [ 23 ] Defence counsel has sought to distinguish most of the cases relied upon by Crown counsel by pointing out that in the cases where officers have been sent to jail, generally the injuries to the victims are more serious, and the officers were committing the violent acts in the course of their duties.

The cases that Defence counsel has sought to rely on, in some instances involve more serious injuries to the complainants and yet the Court has decided, in appropriate circumstances, that an absolute or conditional discharge would be a fit sentence. [ 24 ] Defence argues that when the Court is asked to sentence a police officer, considerable focus is placed on the concept of breach of trust.

In most of the cases relied on, a breach of trust by the officer who was on duty is obvious: ( Botterell – the officer kicked a defenceless prisoner who was on the ground; Byrne – a teenage girl in custody was assaulted while in handcuffs and choked when in her cell; Hudd - a victim who was in custody was removed from a transport van and kicked; Feeney - the victim was assaulted while in handcuffs and shackles.

He was kicked in the face, given flying kicks, punched in the back and face and grabbed by his bound hands and legs and used as a mop to wipe spilled juice from the floor; Cronmeiller - prisoners were taken to a secluded area, removed from a police wagon and assaulted; Langlois - was dragged into the police detachment in a headlock and choked; Cook - was convicted of possession for the purpose of trafficking, theft, breach of trust, and simple possession; Cusack - stole money from an elderly person that he pulled over during a traffic violation.) In a few of the off duty cases, the breach of trust was also quite significant and remarkable: Auger - committed a break and enter; and Dosanjh - was convicted of obstructing justice by counseling a witness to lie.

Defence points out that the off duty assault of Khan by Klassen, in the context of a mistaken but restrained attempted arrest cannot be likened to any of these cases. [ 25 ] Defence has also relied on the two British Columbia Provincial Court cases of Reddy and Tsui . Although they are different from Klassen on the facts, these are cases where discharges were imposed for the assaultive actions of off duty officers. Although Tsui, who pled guilty and was found to have engaged in gratuitous and unnecessary violence, he received a conditional discharge.

Defence argues that in the case of Klassen, while the force used was not justified, it was measured, and there was no reliable evidence that it resulted in any physical injuries to Khan. The methods employed were consistent with his police training and designed to effect compliance and to control a situation, but not to cause injury.

This is corroborated by Klassen saying “do as I say and you won’t be hurt” and supports the finding that Klassen’s motivation when intervening was not intended to further harm Khan. [ 26 ] Defence counsel also outlined Klassen’s personal background: - He is a father of two young children, is age 40 and has no criminal record; - Before he joined the police service he was a heli-logger and worked in a mill; - He was a volunteer fire fighter in the Okanagan; - He was involved with the Justice Institute in assisting police trainers both before and after he joined the Police Service; - He was still a probationary police officer at the time of this assault.

Tab 5 of Exhibit 2 reflects the positive evaluation that he received when in the Police Academy confirming that he had a reputation, not as a fighter, but rather as a consummate gentleman and statesman, who displayed tact, professionalism and was seen to use force only as appropriate to a situation; - In 2010 he volunteered his time at A Better Place Transition Housing, including speaking to the residents, assisting residents with court proceedings, providing a law enforcement perspective, building better relationships with the police, and in driving residents to meetings and appointments.

He stopped this activity only after he received threats, out of a concern for potentially placing others at risk. [ 27 ] Defence has also provided, at Tab 7 of Exhibit 2, a written report from the residential facility that Klassen attended in December

2010 and March and April 2011. This report confirms Klassen’s attendance and the progress that he made. The issues explored during his stay were, mood disorders, emotional coping strategies, values, alcohol abuse, anger management, sense of self – core beliefs and relationships. This report confirms that Klassen gained a great deal of insight while engaging voluntarily in their program.

Klassen confirmed to those treating him that he has experienced two years of torment due to the court case and ensuing negative publicity, his suspension from work that he loved, all of which have taken a heavy toll on his professional and personal life. [ 28 ] Defence argues that the unique circumstances of this case do not require a jail sentence to meet the principles of sentencing of deterrence and denunciation.

Arguing the principles of proportionality and parity he notes that Gillan, whose unprovoked behavior towards Khan was far worse than Klassen, received a 21 day conditional sentence order and was not sent to jail. [ 29 ] Defence also argues that a discharge would be in Klassen’s best interests. As he has now been suspended without pay Klassen is actively looking for work, and a criminal record may impede his ability to find appropriate work.

As well, in the unusual circumstances of this case, a conditional discharge would not be contrary to the public interest. [ 30 ] Defence submits that there is no basis for requiring Klassen to provide a sample of his DNA and that to do so would be an unnecessary invasion of his privacy given the facts surrounding this case. APOLOGY AND EXPRESSION OF REMORSE: [ 31 ] Khan and his wife were present during the sentencing proceedings. Klassen was extremely emotional as he read his apology letter directly to Khan.

In the letter he accepted responsibility for his actions and acknowledged that he had made a rushed decision. I believe that Klassen made a sincere and heartfelt apology. At Tab 6 of Exhibit 2 Klassen also wrote a letter of apology to Constable Jaswal, who was not present at the sentencing proceedings. In this letter he apologizes, acknowledges that he acted unprofessionally and requests forgiveness.

SUMMARY OF THE LAW: [ 32 ] I was provided with 34 cases from counsel which involve the sentencing of police officers for crimes that they committed. Of those 34 cases, only 5 involve officers who broke the law while off duty. Only three of the cases involve off duty officers who committed assaults. These were all cases decided in the British Columbia Provincial Court.

The range of sentences in these cases are the conditional sentence order imposed on Gillan after his guilty plea and a conditional discharge of Reddy , after a trial, and Tsui , after a guilty plea. [ 33 ] The remainder of the cases relied on by Crown and Defence are primarily assault or assault cause bodily harm cases involving officers who committed these assaults on civilians while on duty. Some of these cases involve the gratuitous unprovoked use of force.

Despite the fact that these assaults occurred while the officers were on duty, the sentences imposed range from absolute discharge, conditional discharge, suspended sentence, fine, and conditional sentence order to real jail. The cases relied on often involve the on duty actions by officers in the heat of the moment or are a reaction upon provocation by the victim of the assault. [ 34 ] Since a conditional sentence order became a sentencing option in 1996, with the exception of four cases which all involved extremely aggravated circumstances, none of the cases provided resulted in a jail sentence.

The cases where jail was imposed were as follows : Cook involved an officer who was convicted of clandestinely taking what he believed to be 15 kg of cocaine and other miscellaneous goods while on duty. Byrne committed a continuing assault of a young person who was in his custody by driving his van in a way that deliberately jostled her. He later pushed her in a way that caused her head to hit a wall, and then he choked her. He also colluded in the filing of a false report. Feenie involved a handcuffed prisoner who was beaten by four officers who then an attempted to cover up the assault.

This action was found to be premeditated. Hudd was a case where a youth, who was kicked while he was in the care of the bailiff. [ 35 ] While the case law relied upon is generally instructive, of course each individual case is distinctive to its own facts. I have gleaned the following apt sentencing principles from the cases: - A sentence for a police officer is generally more severe than that of the ordinary person because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration. This principle has been codified in the Criminal Code

section 718.2 (a)(iii) which provides that breach of trust is an aggravating factor to be considered on sentencing.

This principle applies whether or not the officer is on duty or off duty at the time of the offence ( Cusack, Dosanjh, Tsui , Reddy ); - The cases do not necessarily dictate that a sentence must be the same for an officer who commits an offence outside his office as for one who commits an offence by virtue of it. ( Dosanjh para. 12) - Where the criminal act arises out of the heat of the moment, courts have generally imposed lighter sentences, including discharges. ( Cronmeiller , para. 27) - It is appropriate to consider the effect that the trial process has had on the offender by being charged and brought to justice. ( Kidd , McKenna and Hennessey , Sweet ) - A discharge is an available sentencing option when a police officer has been convicted of an assault. ( Tait para. 14) - Deterrence and denunciation are the paramount sentencing principles to be employed when sentencing police officers. ( Cusack , Cook ) Rehabilitation plays a lesser role. ( Gillan ) THE APPROPRIATE SENTENCE IN THIS CASE: [ 36 ] This is indeed an unusual and unique set of circumstances.

In determining a fit sentence, I have paid particular attention to sections 718 – 718.2 of the Criminal Code . I am reminded that the fundamental purpose of sentencing is to contribute to the respect for

the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. The most relevant principles of sentencing in this case are to denounce the unlawful conduct, and to deter Klassen and other police officers from ever committing this type of offence. I am also mindful that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of Klassen. The Code requires that the sentence be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

There were no cases provided to me where the facts in any way conformed with the facts in this case. The Code also provides that Klassen is not to be deprived of his liberty, if less restrictive sanctions are deemed to be appropriate in the circumstances and all available sanctions other than jail that are reasonable in the circumstances should be considered.

I am to focus not only on the circumstances of Klassen but also on the circumstances of the offence, and the role that he played in the offence. [ 37 ] In this sentencing I am to focus on the appropriate disposition for Klassen’s role in this unfortunate situation. I am of the view that Gillan was far more culpable than Klassen in his assault of Khan. Initially Gillan attacked Khan without provocation, and during the assault he kicked Khan all over, including on his head.

While Klassen was attempting to restrain Khan on the pavement, Gillan continued in his attempts to assault Khan, and Klassen cautioned him to move away. While assaulting Khan, Klassen specifically said “do as I say and you won’t be hurt”. [ 38 ]

Section 718.2 requires that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offender.

Section 718.2(iii) is a statutory aggravating circumstance as Klassen, although off duty, was utilizing his status as a police officer when he initiated his attempt to unlawfully arrest Khan who was then responding to Klassen’s actions based on his belief that Klassen was indeed a police officer. I do find however that in the continuum of the cases relied on by Crown and Defence, that this was not what I would consider to be one of the most aggravating breaches of police authority as Klassen was not on duty, and he did not assault Khan after Khan had been taken into police custody.

Klassen made an acutely inappropriate decision when he intervened, and he did so when his judgment was impaired by alcohol, however he did not assault Khan maliciously.

Klassen had no lawful authority for his actions and purported to affect an unlawful arrest on an innocent citizen. [ 39 ] I find that there are several mitigating factors that also warrant my consideration: - Klassen is 40 and has no criminal record; - As a result of these charges, Klassen received death threats, had to move his home, and has faced constant media coverage while this matter has made its way slowly through the Court process; - Klassen has had financial consequences, including his recent suspension without pay; - Klassen has provided letters of apology to Khan and Jaswal and has expressed, what I believe to be genuine remorse; - Klassen has voluntarily engaged in a course of counselling and treatment in order to better understand the poor decisions that he made, thereby reducing the necessity to invoke the principle of rehabilitation; [ 40 ] In my reasons for judgment I found that Klassen made a split second drunken decision to attempt to arrest Khan, without taking the time to ascertain what the true facts were.

His judgment at the time of the assault was not as sound as it would have been had he been sober, and his actions were not premeditated. I accepted that Klassen made this decision partially because of his knowledge and respect for Gillan. He had no idea of the interaction between Khan and Gillan that had preceded his arrival on the scene. Klassen’s assault of Khan was made in the context of his mistaken belief that Khan was the perpetrator, and what he did in assaulting Khan was to employ familiar police tactics. He did not engage in gratuitous violence.

The assault consisted of him getting on top of Khan, who was on the ground, and forcing Khan into a side mount position, grabbing him by the hip and shoulder and flipping him over on the stomach into a “secure handcuff position”, poking, slapping or hitting him multiple times on the shoulder to indicate to Khan which hand to free up, burying his knees into Khan’s back and shoulder area and applying force to Khan to get him to cross his legs.

All of this was done in a short period of time, while in public view, and while commands such as “cross your legs”, “arm out”, and “do as I say and you won’t get hurt” were being uttered by him. It was clear that Klassen mistakenly believed that his intervention was necessary, but objectively his contact with Khan was designed to effect compliance and to control the situation, and was not something that was done intentionally in order to deliberately inflict injury to Khan. [ 41 ] I am not satisfied that a jail sentence is the appropriate disposition in this case.

I have carefully considered all of the cases relied on by the Crown and find that the conduct of Klassen in this case is not even close to the type of behaviour where the Courts have seen fit to impose sentences of real jail or conditional sentence orders. I believe that there will be a deterrent effect in the future when officers in similar circumstances consider the prospect of an arrest, a prosecution, a likely conviction, the threat of consequences to their employment, and public scrutiny. [ 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. [ 43 ] I am satisfied that it is in Klassen’s best interests for him to receive a conditional discharge. A criminal record may well impede Klassen’s ability to successfully find alternate employment. He is currently suspended without pay and is actively seeking employment so that he can continue to support himself as well as his children.

Klassen’s ability to return to policing remains questionable as he still faces their disciplinary proceedings, although these events happened almost 2 ½ years ago. [ 44 ] I also find that a conditional discharge is not contrary to the public interest. The law is clear. A conditional discharge is still capable of achieving the sentencing goals of denunciation and general deterrence provided that there are appropriate conditions attached.

This long and highly publicized trial process, and Klassen’s conviction for the criminal offence of assault, has no doubt served to specifically deter Klassen and in the same way ought to deter other like minded police officers from engaging in this kind of behavior while off duty. This was an isolated incident and was not premeditated. It was not an unprovoked assault, as I accepted that although mistaken, Klassen believed that he was getting involved after he had witnessed an assault in progress.

I accept that there is no real need to further achieve the goal of specific deterrence, as Klassen is remorseful and has undertaken treatment in order to gain better insight in

order to ensure that this conduct is never repeated. I also accept that this trial has been a means of educating Klassen and other officersabout what might constitute an inappropriate circumstance to effect an off duty arrest. [45] I therefore grant a conditional discharge and place Klassen on probation for a period of one year.

You will: - Keep the peace and be of good behaviour; - Report to court when required to do so; - Notify your probation officer in advance of any change in your name or address and promptly notify your probation officer of anychange in your employment or occupation; - Report to a probation officer at 275 East Cordova Street on or before 4:00 p.m.

June 13th, 2011 and thereafter as and when directed; - Have no direct or indirect contact with Firoz Khan; - Participate and complete any course of counseling as directed and to the satisfaction of your probation officer; - Under the direction and supervision of your probation officer you will complete 100 hours of community work service before theexpiration of your probation order.

It is my intention, in including this substantial number of community work service hours, to requireyou to prove to yourself and to the public that you can be a valuable member of this community who is able to assist others that are lessfortunate than you. I recognize that you have done this as a volunteer in the past, and leave it to the discretion of your probation officer,in consultation with you, to find an appropriate placement that might best utilize your skills. I know that when you find full timeemployment, that you may find the completion of this number of hours to be onerous.

That is my intention, in ensuring that thisconditional discharge achieves the principle of deterrence. [46] I delegate to the Registry the duties provided in

section 732.1(5) including providing an explanation of the terms of this order toyou. There is also a victim fine surcharge to be paid in this case. Unless I hear submissions otherwise, I require you to pay thissurcharge within 30 days. [47] The Crown has, pursuant to

section 487.051, asked that I require Klassen to provide a sample of his DNA. Given his age, hislack of a criminal record, his history of employment, and the circumstances of this offence, I find that the impact on his privacy inrequiring Klassen to provide a sample of DNA would be grossly disproportionate to the public interest in the protection of society andthe proper administration of justice and so I decline to make the order sought. _______________ J. Werier Provincial Court Judge APPENDIX A Crown Book of Authorities [1] R. v. Auger, (NS CA), [1972] 20 C.R.N.S 220, 1972 CarswellNS 16 [2] R. v.

Cusack, (NS CA), [1978] 41 C.C.C. (2d) 289, 1978 CarswellNS 23 [3] R. v. Harper, [1980] B.C.J. No. 722, 1980 CarswellBC 725 [4] R. v. Gillan, 2009 BCPC 241, 2009 CarswellBC 2051 [5] R. v. Hudd, [1999] 126 O.A.C. 250, 1999 CarswellOnt 3621 [6] R. v. Dosanjh, 2006 BCPC 574, 2006 CarswellBC 3278 [7] R. v. Feeney, 2008 ONCA 756, 2008 CarswellOnt 6583 [8] R. v. Nixon, (BC CA), [1991] 63 C.C.C. (3d) 428, 1991 CarswellBC 1170 [9] R. v. Cronmiller, 2004 BCPC 1, 2004 CarswellBC 6 [10] R. v. Langlois, 2004 BCPC 195, 2004 CarswellBC 1470 [11] R. v. Cook, 2010 ONSC 5016, 2010 CarswellOnt 7804

[12] R. v. Tsui, 2008 BCPC 155, 2008 CarswellBC 1169 APPENDIX B: Defence Book of Authorities [1] R. v. Bertuzzi (ON CA), [2004] B.C.J. No. 2692 (BCPC) [2] R. v. Botrell [1981] B.C.J. No. 856 (BCCA) [3] R. v. Byrne 2009 ONCA 134 , [2009] O.J. No. 558 (OntCA) [4] R. v. Dunn [1994] O.J. No. 279 (OntCA) [5] R. v. Etienne [1989] B.C.J. No. 1492 (BCCA) [6] R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (BCCA) [7] R. v. Ford, Vancouver, BC December 3, 1999 (BCPC) [8] R. v. Gray [2000] O.J. No. 3596 (OntSC) [9] R. v. Griffin (PE SCAD), [1975]P.E.I.J. No. 64 [10] R. v.

Hanson Surrey, BC, April 6, 2008 (BCPC) [11] R. v. Jackman [1994] N.J. No. 237 (Nfld. Prov. Ct.) [12] R. v. Kidd [1998] O.J. No. 1739 (Ont. Gen. Div.) [13] R. v. Kitos Vancouver BC January 14, 1999 (BCPC) [14] R. v. Krauss Prince George BC, June 20, 1991 (BCPC) [15] R. v. Lofroth [2001] Prince Rupert, BC April 12, 2001 (BCPC) [16] R. v. McCullough Vancouver, BC June 2, 2006 (BCPC) [17] R. v. McKenna Terrace, BC May 29, 2006 (BCPC) [18] R. v. Miles (AB CA), [1975] 24 C.C.C. (2d) 529 (ABQB) [19] R. v. Peters [2008] BCJ No. 2674 (BCSC) [20] R. v. Pratt Vancouver BC May 18, 2001 (BCPC) [21] R. v.

Reddy 2007 BCPC 401 (BCPC) [22] R. v. Reidpath [1999] NJ No. 111 (NfldPC) [23] R. v. Sweet [2007] BCJ No. 1747 [24] R. v. Tait 2005 BCPC 273 (BCPC) [25] R. v. Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61 [26] R. v. G. (V.M.) [1988] O.J. No. 284