R. v. Demers, 2012 NSPC 130

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Demers, 2012 NSPC 130 Date: September 12, 2012 Docket: 2275668, 2275669, 2286895, 2286896, 2286898 Registry: Amherst Between: Her Majesty the Queen v. Joshua Wilfred Demers Judge: The Honourable Judge Paul Scovil Heard: in Amherst, Nova Scotia Written decision: October 1 st , 2013 Charge: THAT HE between the 22 nd day of August, 2010 and the 22 nd day of January, 2011 at, or near Springhill, Nova Scotia, did unlawfully possess a substance included in

Schedule II to wit: Cannabis (marihuana) contrary to Section 4(1) of the Controlled Drugs and Substances Act; and furthermore between the 22 nd day of August, 2012 and the 22 nd day of January. 2011, at or near Springhill, County of Cumberland, Province of Nova Scotia, did unlawfully possess a substance included in

Schedule II to wit: Cannabis (resin) contrary to Section 4(1) of the Controlled Drugs and Substances Act. THAT HE on our about the 3 rd day of January, 2011 at, or near, Springhill, Nova Scotia, did steal approximately 20 liters of gas the property of Springhill Police Services of a value not exceeding five thousand dollars contrary to

Section 334 (

b) of the Criminal Code ; And furthermore between the 22 nd day of August, 2010 and the 22 nd day of January, 2011, at or near Springhill, County of Cumberland, Province of Nova Scotia, did steal seized contraband material from main exhibit locker room the property of Springhill Police Services of a value not exceeding five thousand dollars contrary to

Section 334 (

b) of the Criminal Code ; And furthermore between the 22 nd day of August 2010 and the 22 nd day of January 2011 at or near Springhill, Cumberland County, Province of Nova Scotia, being an official, to wit a Peace Officer did commit a breach of trust in connection with his duties by removing and wrongfully taking seized contraband in the custody of the Springhill Police Service without lawful authority and for his own personal benefit contrary to

Section 122 of the Criminal Code . Counsel: Suhanya Edwards, for the crown Jim O’Neil, for the defence

By the Court: [1] This is the sentencing of Joshua Demers in relation to two counts of possession of a substance to wit Cannabis Marihuana under4(1) of the Controlled Drugs and Substances Act as well as two thefts under pursuant to

section 334(

b) and a breach of trust under section122 of the Criminal Code. [2] He has plead guilty to a charge of taking gas, the property of Springhill Police Service, of a value not exceeding $5,000 with respect to

section 334(b), taking between the 22nd of August, 2010 and the 22nd day of January, 2011 at or near Springhill, Nova Scotia,contraband materials from the main exhibit locker of the police of a value not exceeding $5,000 under

section 334(

b) and also theobstruction of justice by tampering with evidence bags under 122 of the Criminal Code. [3] In relation to sentencing counsel have presented me with cases that I have considered. As well, before me is a presentencereport. The basic fact outline is that the accused was part time and then became a full time officer of the Springhill Police Department. During the course of that employment, he began taking marihuana from the evidence locker located at the police station. In order to dothat he would steal the key from one of the two exhibit officers.

There officers were the only ones entitled to either go in to the evidencelocker themselves, or to escort individuals in to the evidence locker. He would enter into the evidence locker and take marihuana fromevidence bags relating to ongoing matters before the court. Also from exhibits from that had already been concluded. In any event,those evidence bags were tampered with. He was also observed on video taking gas from the police station pump and putting it into hispersonal vehicle. [4] There is before me a presentence report. It does set out, fairly well, the background of this accused.

He obviously had no prioroffences. The indications are that he had always wanted to be a peace officer. It was a dream of his. He was able to enter the RCMPand worked with them for a one year period. He then was found that he had difficulty with that and eventually relocated to Springhillwhere he was employed, at first, on a part time basis and then full time with the Springhill Police Department. Again, as he indicated, itwas a childhood dream of his to be a peace officer. [5] Unfortunately, it appears that the stress and strain of being a peace officer cause Mr. Demers to deal with it in a difficult fashion.

He became depressed. He felt that self-medicating by the use of marihuana, which he experimented with much earlier in his life, wasone which would help him sleep because he was unable to sleep given what he felt were the pressures of the job. He was also drinkingto excess. He then decided that because he did not want to break the law by buying marihuana he took it from the police evidencelocker. He did this knowing the ins and outs of police work, knowing when he took the gas as well, this could be nothing more than anunderstanding that ultimately he would be caught at this.

How one could take evidence bags, not expect to be caught, knowing howevidence lockers work, knowing how carefully evidence is protected, it makes no sense to me, other than to assume that he expected andwanted to be caught. [6] In relation to this, he was then dismissed, obviously, from his work. He has had some employment but due to the economy he iscurrently unemployed. He is currently receiving counselling at this time for his depression and other mental health issues that relate tohis ongoing condition. [7] Counsel before me suggests there is a joint recommendation in some sense.

In relation to this, the crown is suggesting a sixmonth period of custody would be in order followed by a probationary period of one year. The accused submits that a six month periodof a Conditional Sentence Order would be in order and even suggests that, perhaps a lengthier sentence might be appropriate followed bythe one year probation. So in that sense, there’s very much a distinction between what crown and defence are suggesting. [8] Clearly taking into account

section 718 and 718.2 and case law, this type of offence requires a period of custody. The sentencingin relation to peace officers involved in misconduct suggests a wide range of sentencing depending on the nature of the offence and howthe accused was involved. A good touchstone in relation to how these are dealt with is the R. v. Ryan 2004 NSCA 105 , [2004]N.S.J. No. 332 (N.S.S.C.) case, the facts of which have very little resemblance to what I have in front of me.

There an RCMP officerwho was on a street crime unit tasked, primarily, with the enforcement of anti-drug laws and dealing extensively with offenders in drugareas. During the course of his employment that officer had been taking evidence from the evidence locker and as well from otherplaces and then supplying other individuals with those drugs to sell and to obtain funds from the sales. In that case Ryan received a fouryear period of custody. Certainly, well within the range for what that individual was doing.

But outside of that, as indicated by thecases submitted by both the defence and crown, there is a wide range.

[9] In relation to this, first, there has to be a determination as to whether the length of period of custody described by the crown andby the defence is a fit and appropriate sentence in relation to this. I find that a six month custodial period would be in order with aprobationary period. Taking into account all the aggravating features, this is a breach of trust. Obviously officers who would beinvolved in this would expect no less than the public that would they be caught they would be serving a custodial period. The questionof length is one which involves some of the mitigating factors.

This is a first time offender, and I accept that his plea was at the earliestreasonable opportunity that presented itself and that throughout I expect that there were movements towards a plea and that the justicesystem did not have to go through a full-fledged trial with all the difficulties and problems that that would ensue. So that’s a mitigatingfactor. [10] In relation to the accused himself, I accept that he was in a depressed state. I accept that that was bearing on why he ended updoing what he did.

I suspect that he was in a position where he was wanting to be a fish in a certain pool of water and having gotten thererealizing that he was a fish that should not have been in that water at all and the stresses and strains of police work, which are front lineindividuals in societies undervalued, I can say it that way, and dealing with some of the most difficult aspects of life they take anemotional toll which effected this individual. In relation to this though, he was in a position of trust.

He was in a position of one wherethe public would expect him to act far differently, as he knew, from what he did. [11] In relation to this, I quote from R. v. Leblanc 2003 New Brunswick Court of Appeal at page 75, paragraph 27 where the courtsaid: Police officers have opportunities, practically on a daily basis, to cross the line and engage in prohibited conduct. The public trusts themto resist the temptation and relies upon the courts to deal firmly with those who stray. The court went on at paragraph 29 to say: As for denunciation, I can do no better than repeat what Lamer C.J.C. said on the subject in R. v.

C.A.M., (SCC),[1996] 1 S.C.R. 500, at paragraph 81: Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, atp. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can showthis is by the sentences they pass".

The relevance of both retribution and denunciation as goals of sentencing underscores that ourcriminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasingthe cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence whichexpresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negativeconsequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set ofcommunal values shared by all Canadians as expressed by the Criminal Code. [12] In relation to this, taking all of those factors in account, as I have said earlier, the six month period followed by probation is, Ifind, within the framework of the type of sentence that should be imposed.

The question comes down to is a conditional sentence onewhich would be appropriate either at the six month level or an increased conditional sentence to reflect the nature of the offence and theoffender. [13] In relation to the conditional sentence regime under 742.1, it indicates that I have to first consider whether the sentence ofimprisonment is less than two years and obviously I am satisfied that that is an appropriate period of time and I am satisfied that theservice in the community would not endanger the safety of the community.

In looking at this, the accused himself, at this point,represents no danger to the community. [14] But I must also consider whether a sentence of a conditional sentence would be consistent with the fundamental purposes andprinciples of sentencing set out in

section 718 to 718.2. In relation to this, obviously, denunciation of this type of behaviour by someoneas a police officer in a position of trust, I submit is the key issue in relation to this. Having worked with police officers for many years,by far most of them are courageous, good individuals seeking to do right by the public. When something like this comes into play itreflects poorly, not only the accused but on all police officers. They are in a position of trust unlike most anyone else in the justicesystem. They are on the front lines, they are the ones who go into, for example, buildings where people have possessions that are easily

taken and people expect them to live up to their oath and trust them not to take advantage of that. [ 15 ] In addition to, not only the theft of the gas and theft in the locker room, the accused in this case put into play a situation where he not only jeopardized his own position by the theft, he jeopardized a societies ability to prosecute other individuals by tampering with that evidence which is a crucial aspect of the justice system.

When this, as an attack on the justice system, effects the integrity and the ability for the system to protect both the innocent and the guilty and to effectively prosecute the guilty by ensuring the sanctity of an evidence room, when that’s effected, it is truly a hit at the very, very fundamental heart of the justice system. Denunciation, therefore, is one which is significant.

I must say that had this been simply stealing gas, well, I shouldn’t say simply, but the effect of stealing gas, money from someone else locker, those type of very reprehensible offences, I would have no difficulty indicating that a conditional sentence order would be, certainly, in play in relation to sentencing. [ 16 ] In this case, given the nature of the offences, I don’t believe that a conditional sentence would effectively reach the denunciation that society expects for someone in his position doing the crime that he did and so for that matter, I am not prepared to enter a conditional sentence order.

I am prepared to sentence him, sir, if you could stand up, I am sentencing you to a period of six months in custody on the charges, each one concurrent to each other but consecutive to anything else so the anticipation would be, that would be a sentence of six months in custody followed on each count by one year probation concurrent to each other and consecutive to anything else. [ 17 ] That probation order would carry the following terms: That upon expiration of the sentence of imprisonment imposed on you, you will serve a period of 1 year Probation the terms are that: 1. keep the peace and be of good behaviour; 2. appear before the court went required to do so by the court; and 3. notify the probation officer in advance of any changes of name or address or telephone number and promptly notify the probation officer of any changes of employment or occupation; (

a) report to a probation officer at 26-28 Prince Arthur Street, Amherst, Nova Scotia, within 2 days from the date of expiration of your sentence of imprisonment and thereafter as directed by your probation officer. (

b) reside within the Province of Nova Scotia unless you receive written permission from your probation officer to reside elsewhere. I recognize that you don’t reside in Nova Scotia now, I expect that the probation officer would, certainly, give you permission to reside where you are residing now once this is completed. You are: (

c) not possess or consume a controlled substance as defined in the Controlled Drugs and Substances Act except in accordance with a physician’s prescription for you or a legal authorization. (

d) attend for, participate in and successfully complete any and all counselling, assessment, treatment or program as directed by your probation officer, including but not limited to mental health, substance abuse and urinalysis or other alcohol or controlled substances screening, as directed. [ 18 ] And, in relation to this, those would be the terms. In addition, there would a $100.00 victim fine surcharge on each of the charges. Is there any conditions that… Mr. O’Neil: I wonder if we can waive those given the sentence. The Court: Any comment on that? I understand that he is not working. Ms.

Edwards: No, Your Honour, no comment. [ 19 ] I’d waive the victim fine surcharges. Any other conditions left?

Ms. Edwards: No other conditions Your Honour. Just in respect to the remaining counts before the court, the crown would offer no evidence. [ 20 ] Those are dismissed. As well, I’d grant the Forfeiture Order as requested by the crown in relation to this matter. So sir, you are to go with the sheriff now to complete your sentence. Thank you. PCJ