R. v. Oke, 2021 MBPC 39

Citation: R. v. Oke , 2021 MBPC 39 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Hazelton for the Crown ) - and – ) ) Gregory James Oke ) J. Weinstein for the Accused ) ) ) Decision on Sentence Judgment delivered: ) September 13, 2021 M. P. Thompson, P.J. INTRODUCTION [ 1 ] Gregory Oke, an RCMP Constable, has pled guilty to assault contrary to s. 266 of the Criminal Code of Canada .

He admits he used excessive force to effect an arrest of an Indigenous man. [ 2 ] In this case, the Court must determine whether it is appropriate that a police officer receive the benefit of a conditional discharge, which could avoid a criminal record. [ 3 ] Additionally, how does the fact the officer was suffering from undiagnosed PTSD, resulting from trauma he was exposed to through his work, factor into the determination of a fit and fair sentence? [ 4 ] As the Case Management Judge, in October 2020, I agreed to hear this sentencing hearing.

After making arrangements for the Accused to enter his guilty plea in Thompson, counsel had asked the sentencing be transferred to Winnipeg for the following reasons: • Covid 19 made travel to the North a risk; • The Accused and counsel for the Crown and Defence all reside in southern Manitoba; • Courts are currently closed to the public in Thompson: and • The Accused is a single parent. [ 5 ] Given those considerations, and particularly because the public is not permitted to attend the courthouse in Thompson, I agreed that the sentencing would take place in Winnipeg.

CIRCUMSTANCES OF THE OFFENCE [ 6 ] This offence took place in Thompson, Manitoba, on September 12, 2018. Two RCMP officers were dispatched to attend to deal with an intoxicated female who was refusing to leave the porch area outside the homeless shelter, located at 115 Churchill Drive. William Farrow, an Indigenous man, was a bystander who was known to Cst. Oke through prior dealings. Police attempted to get the female to leave. She was grossly intoxicated and rolling around on the deck. She was unable to stand on her own. [ 7 ] Cst. Oke and his partner, Cst.

Frigault were attempting to get her to her feet with the assistance of various civilians. The encounter appeared to be relaxed, even jovial at times, with bystanders gesturing with Cst. Oke. It appeared he was known to them and on good terms. One civilian slapped his arm in a friendly manner twice. He responded in a way that made it clear he took no offence. After the female subject began to pull her arms in resisting police efforts to assist her to her feet, she was handcuffed, but that was abandoned when efforts to get her to stand failed. [ 8 ] Mr.

Farrow was unsteady on his feet and is seen in the video making comments to police. According to witnesses, he was calling police names. One witness said Farrow was “talking shit” and getting into the officer’s personal space. As they got the female to her feet, she leaned up against the railing on the porch. Mr. Farrow was on the sidewalk facing the woman. [ 9 ] Farrow then spat once, possibly twice. [ 10 ] Cst. Oke reacted instantly with physical force. He took four steps across the deck towards Farrow. He punched Farrow in the face three times with his right hand using a closed fist.

He then stepped down off the deck onto the sidewalk below and grabbed at Farrow’s arms, pulling them off the railing. He placed his arm around Farrow’s neck from behind, lifting his chin up and back, and brought him down to the ground. He handcuffed Farrow and placed him under arrest for assaulting a police officer.

[ 11 ] Mr. Farrow was taken to cells and released the next morning with a Promise to Appear for the offence of assaulting a police officer. He had a small cut to the back of his head, but no memory of what had happened. That charge was never formally laid or prosecuted. [ 12 ] According to Cst. Oke’s partner, the spit landed on the female and some spit landed on his leg. One witness indicated Farrow spit on the ground. While the evidence is inconclusive, the Crown accepts that Cst. Oke absolutely believed spit landed on his face. Cst. Oke is seen in the video at one point after the takedown wiping his face.

He told various witnesses that Farrow had spat on him or in his face. Back at the police station, he did fill out a use of force report. [ 13 ] The incident was captured by video surveillance outside the homeless shelter. When the shelter’s supervisor was made aware of it, a complaint was filed with police. The Independent Investigation Unit conducted an investigation, which included interviewing witnesses and reviewing the video surveillance. Because of their investigation, Cst. Oke was charged with assault. [ 14 ] By his guilty plea, Cst.

Oke admits his use of force was excessive and amounted to an assault. [ 15 ] At issue is the appropriate sentence for this offender, who is a police officer, and this offence, an assault against a vulnerable Indigenous man. SENTENCING MATERIALS [ 16 ] Filed as exhibits were: Exhibit S1 - Agreed Statement of Facts; Exhibit S2 – DVD of surveillance video of the incident; Exhibit S3 - Forensic Risk Assessment of Cst.

Oke dated, July 29, 2021; and Exhibit S4 - Letters of character reference and support for Gregory Oke. [ 17 ] Crown and Defence counsel both filed casebooks containing relevant sentencing precedents in advance of their oral submissions. [ 18 ] Despite contacting the homeless shelter, the Crown was unable to locate the victim who is transient. As a result, a Victim Impact Statement is unavailable. [ 19 ] After the sentencing hearing on August 12, 2021, I reserved my decision. These are my reasons for sentence. CIRCUMSTANCES OF THE ACCUSED [ 20 ] Unsurprisingly, Cst. Oke has no prior criminal record.

He also has no prior disciplinary proceedings against him. As a result of this allegation, he was transferred out of the Thompson District to a different district in Manitoba as per protocol. That meant his wife and children had to relocate with him out of Thompson. [ 21 ] Separate and apart from these Court proceedings, the RCMP took conduct measures against him because of this incident. He was docked two days of pay at $640.00 and was non-promotable for two years commencing December of 2019. [ 22 ] Tragically, his wife of sixteen years died unexpectedly on April 2, 2019.

After undergoing surgery for a broken ankle, she suffered a pulmonary embolism. She was at home when she died and was found shortly before her death by Cst. Oke. She is survived by Cst. Oke and their two children aged sixteen and fifteen. [ 23 ] Cst. Oke is forty-four-years-old. He joined the RCMP in 2015 and his first posting was to the detachment in Thompson, Manitoba. This incident took place on September 12, 2018. [ 24 ] A Forensic Psychological Assessment was completed by Dr.

Kolton, a registered psychologist who has been previously qualified in Manitoba Courts as an expert witness in the areas of Forensic Psychology and Violence Risk Assessment. His report dated July 29, 2021 was filed as Exhibit S-3. [ 25 ] Cst. Oke reported to him that prior to this assault, he had already told his superior that he was burned out, working overtime plus regular shifts and not doing any recreational activities to relieve stress. He had been in Thompson for over three years and described the detachment as understaffed, which required much overtime.

A different psychologist has subsequently diagnosed him with Post Traumatic Stress Disorder (PTSD) related to incidents he experienced as an RCMP Officer. Cst. Oke had suffered significant trauma from multiple exposures to death and serious injury by accident, suicide and homicide in the course of his work. He had difficulty sleeping because of intrusive memories and frequent nightmares with trauma connected themes. He also became irritable, angry and experienced elevated anxiety and hypervigilance.

Upon his diagnosis, which came after this charge, he received and participated in extensive treatment that has resulted in him no longer meeting the diagnostic criteria for this mental health condition. [ 26 ] Dr. Kolton did a Risk Evaluation of Cst. Oke’s level of risk for violent re-offence and has rated him as a low risk for future violence. [ 27 ] Dr. Kolton noted that aside from this offence, Cst. Oke has lived a pro-social life focused on law enforcement and his young family.

He has no previous history of violence, and he has engaged in extensive psychological and psychiatrist treatment for PTSD which has led to significant insight and improvement in mental health functioning. [ 28 ] Several letters of references were filed on behalf of Cst. Oke including a RCMP supervisor who described him as mature and

calm, that he was respectful with community members and showed compassion and professionalism. Cst. Oke acknowledged to that officer, his actions and the impact they have had on not only himself but also the others involved. [ 29 ] Cst. Oke is described by another fellow officer as teaching him that being a police officer is more than enforcing the law. You need to be out there and talk to people. He knew many of the local population of Thompson and would frequently stop and talk to them including chatting with the youth.

He frequently told the junior officer that unless he had pressing paper work he should be out on the road, interacting in the community. He also explained and taught the use of sound reason, voice and presence to solve conflicts instead of going straight to handcuffs if the situation allowed it. He reports that the incident now before the Courts has bothered Cst. Oke greatly. [ 30 ] Cst. Oke is described by a fellow RCMP troop mate as a person who “is salt of the earth”, trustworthy and genuine with his kindness, who has been dependable with his morals, values and conviction.

He noted that the effect that this event has had on Cst. Oke’s life was life altering due to the weight from the stress, due to the uncertainty of this case. Cst. Oke’s move out of Thompson added to the weight of that stress. He indicated that Cst. Oke has expressed remorse for the event and regret for his actions. [ 31 ] A close friend of thirty years reported his feelings of surprise and disbelief when learning of this information, as it seemed so out of character for Cst. Oke. He describes Cst.

Oke as an honest, hardworking father of two firstly dedicated to his family and did not know him to act with anger or aggression in all the years that he has known him. He indicates that Cst. Oke owns up to his mistakes and is not one to deflect blame or make excuses. [ 32 ] It is clear from reading the letters of his colleagues at work and his close friend that he is still held in high regard and that this incident is seen as being very much out of character for him. SENTENCING POSITIONS [ 33 ] The Crown describes Cst.

Oke’s actions as over-zealous conduct. [ 34 ] The Manitoba Court of Appeal has said that police officers hold a unique position of trust with the public. It is a statutorily aggravating factor that he abused that position of trust or authority.

The Crown points to denunciation and general deterrence as the paramount sentencing principles at play when sentencing a police officer. [ 35 ] The Crown elected to proceed summarily and asked the Court to impose a suspended sentence with probation for 12-18 months, which would result in a criminal record. [ 36 ] The Defence seeks a conditional discharge with 12 months of probation, which if granted would give the Accused an opportunity to avoid a criminal record if he complies with court ordered conditions and is not re-involved during the probationary period.

Defence argues it would not be contrary to the public interest to grant a conditional discharge. SENTENCING OF POLICE OFFICERS / THE AUTHORITIES [ 37 ] The Manitoba Court of Appeal reviewed the applicable legal principles when sentencing a police officer in R. v.

Letkeman, 2021 MBCA 68 . [ 38 ] Principles of denunciation and general deterrence become magnified when sentencing police officers, who are held to a higher standard because of the public trust they hold. (para 31) [ 39 ] Police officers hold a unique position of trust in our society and police criminality, is on its face, a violation of the general trust placed in them to uphold and enforce the law. (para 59) [ 40 ]

Section 718.2(a)(iii) of the Criminal Code is applicable. It is an aggravating factor that the Accused, in committing this offence, abused a position of trust or authority in relation to the victim. [ 41 ] Police officers are also held to a higher standard than is expected of ordinary citizens because they are trained to respond properly to volatile encounters. (para 32) [ 42 ] The officer’s moral culpability, or degree of responsibility, must be assessed.

Moral culpability is lower when the crime committed does not involve a deliberate leap into criminality, but rather is committed by an officer incidental to the discharge of a duty related to public safety. (paras. 37-39) [ 43 ] There are no discrete, fixed categories to assess moral culpability. It will always depend on the particular facts of the case. (para 38) [ 44 ] When principles of denunciation and general deterrence are paramount, the focus of the sentencing judge is to be more on the offence committed, rather than on the offender, to better reflect the gravity of the conduct.

Factors personal to the offender necessarily take on a lesser role. (para 51) [ 45 ] A review of sentencing authorities for police officers’ use of excessive force resulting in convictions for assault or assault causing bodily harm provide guidance. Those cases reveal a pattern of relatively low sentences that recognise the typically favourable personal circumstances and the fluid and difficult situations in which they find themselves. (para 65) [ 46 ] Defence counsel provided a number of cases fitting that pattern, including R. v. Baxter , 2018 ONCJ, which I find has some

similarities to this case. [ 47 ] In that case, Sergeant Baxter was convicted after trial of assault causing bodily harm. The trial judge found that Sgt. Baxter had reasonable grounds to arrest the victim, but his use of force was excessive in the circumstances. [ 48 ] The facts included that the victim was well known to members of the local police force and when intoxicated he could be annoying, obnoxious and aggressive. He carried the dual burdens of mental health and substance abuse issues and was flagged as a spitter and as violent. Sgt.

Baxter responded to a call for service to a Shoppers Drug Mart as the victim was aggressively panhandling, had a confrontation with one of the employees and when he left he was checking the doors of parked cars. When approached, the victim called him various unpleasantries and was slow to follow commands. In arresting the victim, Sgt. Baxter pushed him face-first and sideways along a fence and then took him chest first to the ground with force, causing a laceration to his face. The event was captured on video surveillance. [ 49 ] Like Cst. Oke, Sgt.

Baxter had no prior criminal record and no record for discipline. He submitted a dozen letters of reference and a copy of a psychiatric assessment rating him as a very low risk for violence. He faced collateral consequences through his employer, which reduced his income. [ 50 ] The Ontario Court accepted his actions were out of character.

The Judge noted, “Society rightfully expects trained and experienced police officers like Sergeant Baxter to control their frustrations, but when they fail to do so, society must recognize that police officers are human rather than superhuman.” (para 36) [ 51 ] The Court in Baxter (supra), noted that s. 730 of the Criminal Code provides that a discharge is available for this offence if it is in the Accused’s interest and if is not contrary to the public interest.

In granting an 18-month conditional discharge with probation, the sentencing Judge noted that just as a non-custodial sentence generally might very well have deterrent value, so may a discharge. [ 52 ] In Cst. Oke’s case, counsel agree a discharge is in his best interest, the question is if it is not contrary to public interest. [ 53 ] A discharge can have deterrent value. His guilty plea recognizes personal accountability. In the case of Cst. Oke, in a very public way. He was publicly named in local and national media.

MITIGATING FACTORS include: [ 54 ] The Accused’s guilty plea saved four days of trial time, which would have been required for this matter. The Accused told the Court he takes full responsibility for what occurred. [ 55 ] He has no criminal record and no prior disciplinary proceedings: and [ 56 ] The trauma to which he was exposed to and suffered from made him irritable, angry and he experienced elevated anxiety and hypervigilance. He has subsequently taken steps to deal with his PTSD diagnosis and remediated its effects.

AGGRAVATING FACTORS include: [ 57 ] The seriousness of the offence, which involves a breach of the public trust: [ 58 ] It is statutorily aggravating as a breach of trust pursuant to s. 718.2(a)(iii); and [ 59 ] The impact on the victim, together with a loss of public confidence. ANALYSIS AND DECISION [ 60 ] Cst.

Oke’s actions were violent and excessive. [ 61 ] The requirement to hold a police officer to a higher standard, because of their position of trust and training is mitigated in this case by the Accused’s moral culpability. [ 62 ] This was not a deliberate leap into crime but rather was a response to a deliberate provocation that was out of proportion to the actual threat to officers and public safety. Spitting at a police officer is a disgusting act. It is clear the spitting triggered Cst.

Oke’s reaction. [ 63 ] While as a police officer he was trained to respond to volatile encounters, his over exposure to death, violence and serious motor vehicle injuries, combined with the unrelenting overtime at an understaffed Detachment was no doubt a contributor to his aggressive response to the threat posed by Mr. Farrow. His undiagnosed PTSD was a direct result of his work environment. Prior to the assault on Mr.

Farrow, he recognized he was under stress and sought help from his supervisor. [ 64 ] The fact that he has now been diagnosed, sought and taken extensive treatment and remediated his condition, speaks to the reduced risk he poses to the public. [ 65 ] The video, showing him interacting with the public prior to the incident, as well as his character references indicate Cst. Oke’s response was very much out of character and I do accept that. [ 66 ] His guilty plea is a significant mitigating factor. It appears to be a rare occurrence that a police officer pleads guilty to excessive use of force.

In accepting full responsibility for his actions, he saved the use of valuable trial days during a pandemic when Court resources are stretched. [ 67 ] Given he has been assessed him as a low risk to re-offend and taking into account the collateral consequences of being docked

pay, being non-promotable for two years and being held publicly accountable, I am satisfied that it is not contrary to the public interest to impose a sentence that will give him an opportunity to avoid the imposition of a criminal record. [ 68 ] I sentence the Accused to a conditional discharge with supervised probation for a period of 12 months. [ 69 ] Conditions of that sentence are as follows: • Report to a Probation Officer within 7 working days and thereafter and as directed; • Keep the peace and be of good behaviour; • Attend, participate in and successfully complete all counselling and programing as directed by Probation Services; and • Perform 100 hours of Community Service Work as directed by your Probation Officer; and [ 70 ] In terms of ancillary orders, DNA is secondary and the Crown is not seeking it, accordingly I will not make an order for DNA.

I do order the Accused to pay a victim surcharge of $100 and $2 court costs, within 30 days. “Original signed by” M.P. Thompson, P.J.