R. v. Bruce Lofroth Date:, 2016 BCPC 429

Citation: R. v. Bruce Lofroth Date: 20161221 2016 BCPC 429 File No: 32202-1 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRUCE LOFROTH REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E.F. de WALLE Counsel for the Crown: Michael Van Klaveren Counsel for the Defendant: Brad Smith Place of Hearing: Terrace , B.C. Date of Hearing: October 21, 2016 Date of Judgment: December 21, 2016

NATURE OF THE CHARGE [ 1 ] Cst. Bruce Lofroth is charged with one count as follows: Count 1: On or about the 28 th day of May, 2014, at or near Terrace, in the Province of British Columbia, did commit assault of A.S., contrary to

Section 266 of the Criminal Code . [ 2 ] The Crown proceeded by Indictment and Cst. Lofroth elected to be tried in Provincial Court. Cst. Lofroth entered a plea of guilty to the charge and now appears before the Court for sentencing. CIRCUMSTANCES OF THE ASSAULT [ 3 ] Constable Lofroth is a member of the Terrace RCMP. He was on duty on May 28, 2014 when he was called to attend at an altercation between a male (

S) and a female (

D) in downtown Terrace. Constable Lofroth placed S under arrest and following a struggle secured S in handcuffs, face down on the ground. Constable Lofroth then struck S on the right side of his head with his fist. When S got up to his feet Constable Lofroth pushed him into the back of the police vehicle. Constable Lofroth admits that the punch and the subsequent push constituted an assault on S. [ 4 ] Filed as exhibit 1 in this case is an “Agreed Statement of Facts” that set out the circumstances of the incident that occurred on May 28, 2014. The Admissions read as follows: 1.

On May 28, 2014 at 9:35 p.m., a family leaving the Tillicum Twin Theatre on Lazelle Avenue in Terrace, B.C., called 911 and reported observing an ongoing physical altercation behind the theatre between a male, S, and a female, D, both of whom were 17 years old and members of the first nations community. They were concerned about the level of force that was being used and requested police assistance. They then left the scene. 2. D had consumed alcohol and was highly intoxicated. 3. Karli Paulson and Delta Mckean were travelling on Lazelle Avenue when they saw S apparently strangling D and holding D against a wall.

D’s back was against the wall. They parked their vehicle and saw a police vehicle arrive at 9:38 p.m. and continued their observations. 4. The police vehicle was operated by Cst. Lofroth who was dispatched in response to the aforementioned 911 call. Cst. Lofroth arrived at 9:38:41 p.m. and was in a marked police vehicle and was wearing a standard police uniform. 5. S and D were still struggling with each other when Cst. Lofroth exited his police vehicle and approached them. S appeared sober but smelled of liquor. D was crying and intoxicated. Cst. Lofroth was able to separate S and D and stood between them. 6.

Cst. Lofroth advised S that he was under arrest for assault and attempted to handcuff S. Cst. Lofroth began to handcuff S by placing a cuff on S’s left wrist. When Cst. Lofroth arrived, he had reasonable and probable grounds to believe that S was committing an offence and Cst. Lofroth’s arrest was lawful and in the proper execution of his duties as a police officer. 7. Prior to placing a handcuff on S’s right wrist, Cst. Lofroth’s attention was diverted and he turned to look at D for a moment, and as he did so and without any warning, S punched Cst. Lofroth in the face. This punch was unprovoked.

Witnesses observed S taking several rapid swings at Cst. Lofroth trying to punch him again. A witness described S as “going ballistic” with arms flailing, “throwing elbows and like punches and just everything.” Cst. Lofroth tried to restrain S by trying to grab S’s arms. 8. A struggle ensued between Cst. Lofroth, S and D. Cst. Lofroth attempted several times to turn S around in order to place the second handcuff onto S’s right wrist. S continued to try and strike Cst. Lofroth with his fists. 9. Cst.

Lofroth repeatedly tried to kick S’s legs out from under him in order to take him to the ground and facilitate his arrest. He eventually succeeded and S fell to his knees and as the struggle continued, S ended up lying on the ground face up. 10. Cst. Lofroth was bleeding from a cut to his upper lip which he sustained as a result of being struck by S. He was trying to turn S onto his stomach. S’s right wrist remained un-handcuffed. 11. Throughout the struggle between Cst. Lofroth and S, D was grabbing at both S and Cst. Lofroth and yelling for Cst. Lofroth to leave S alone and not to touch S. Cst.

Lofroth had directed D to stay where she was and not to come towards Cst. Lofroth and S. D did not comply. At one point, D jumped onto Cst. Lofroth’s back. Mckean stated that she believed that D was trying to choke Cst. Lofroth. Cst. Lofroth was still the only police officer at the scene. 12. At 9:40:10 p.m., Cst. Lofroth called for assistance over the radio. Cst. Brian Nothiesz and Cst. James Lauriault responded and attended at Cst. Lofroth’s location. Two witnesses who were observing the incident stated that they were concerned for Cst.

Lofroth and were going to assist until they saw the additional police officers arrive. 13. When Cst. Northiesz arrived, Cst. Lofroth and S were still in a struggle with S on his back on the ground. S had one handcuff on his left wrist and his other hand was unrestrained. D was interfering with Cst. Lofroth’s ability to place the second handcuff on S. Cst. Lofroth was directing S to “give me your other hand” which was out of Cst. Nothiesz’s sight. 14. Cst. Lofroth directed Cst. Nothiesz to arrest D. Cst. Nothiesz arrested D, placed D in handcuffs and had her sit on the ground next to Cst. Lofroth’s vehicle.

He directed her to remain where she was so that he could assist Cst. Lofroth who was still trying to restrain and handcuff S. S was on the ground, lying on his back at this point. Cst. Lofroth was trying to place the second handcuff on

S’s right wrist. Cst. Lofroth turned S onto his stomach. 15. At approximately this point, a witness records the interaction between Cst. Lofroth and S on a cell phone. The recording (hereinafter referred to as the ‘Video’) is given to the media and to the Independent Investigations Office in October of 2014. 16. Cst. Nothiesz then assisted Cst. Lofroth by holding S’s legs while Cst. Lofroth was crouched over S and attempting to place the second handcuff on S who was still lying on his stomach and struggling with Cst. Lofroth. 17. The time line of the Video is as follows: 00.00 video begins: Cst.

Nothiesz is standing to the left of centre screen moving towards S; Cst. Lofroth is crouching above S who is lying on his side. Cst. Lofroth delivers one punch to S’s upper body, and attempts to roll S from his side onto his stomach; S is on the ground, on his left side, to the right of centre screen. S’s arms are moving. D is on the ground to the left of centre screen. 00.02 Cst. Nothiesz can be seen crouching over S’s legs; S is on the ground, laying face up. S’s leg kicks out and up. Cst. Lofroth is crouching over S’s head. One of Cst.

Lofroth’s hands is holding S’s face down; D is handcuffed and rolling from one side to another. 00:03 Cst. Lofroth is crouching above S; Cst. Lofroth delivers one punch to S’s head; Cst. Lofroth is holding S towards the ground; S is on the ground, one arm up, perpendicular to the ground, pressing into the ground. D has moved to a seated position. 00:04 Cst. Nothiesz points at D and stands up; Cst. Lofroth has one of S’s arms; S is lying on his stomach; S’s head is lifted off the ground; Cst. Lofroth is kneeling over S’s mid torso; Cst. Nothiesz kneeling over S’s lower legs. 00:08 Cst.

Lofroth punches S’s head on the right side, and takes hold of S’s left arm and brings it around S’s back. 00:13 Cst. Lofroth begins to interact with the handcuff on S’s left arm; D stands up. 00:16 Cst. Lofroth punches the left side of S’s head. 00:17 D can be seen running to the left of centre screen; Cst. Nothiesz starts running, chasing D; Cst. Lofroth takes S’s right arm behind his back. 00:24 Cst. Lofroth closes the handcuffs and then punches in the head on S’s right side. 00:25 Cst. Lofroth stands up, walks to his SUV. 00:26 S is lying face down with his head raised from the ground and moving. 00:27 Cst.

Lauriault’s SUV comes into frame. 00:31 D and Cst. Nothiesz come into view from the left side of the screen; S is lying face down, feet kicking; Cst. Lofroth can be seen opening the door of the police SUV. 00:35 Cst. Lauriault runs to Cst. Lofroth who is standing at S’s feet; S has rolled onto his side. 00:47 Cst. Lauriault walks to Cst. Nothiesz and D. 01:05 Cst. Nothiesz and Cst. Lauriault put D in the police vehicle. 01:09 S sits up. 01:17 Cst. Lofroth helps S to his feet. 01:19 Cst. Lofroth walks S to the SUV. This takes 3 steps and Cst. Lofroth is behind S with his right hand on S’s back. 01:21 Cst.

Lofroth uses his right hand to push S into the rear seat of the police SUV. 01:25 Cst. Lofroth closes the rear Police SUV passenger door. 01:59 Video ends. 18. S has stated that he was unconscious on the ground for a period of time following Cst. Lofroth’s last punch. 19. Cst. Nothsiesz has stated that at some point when Cst. Lofroth delivered the first four punches to S, Cst. Lofroth said “are you done” which Cst. Nothsiesz took to mean “are you done fighting”? 20. At 9:46:48, Cst. Lofroth radios that he now has two persons in custody (S and D). 21. At 9:54:41, Cst.

Lofroth leaves the scene to transport S to Mills Memorial Hospital in Terrace where S received medical treatment. He was diagnosed with a non-displacement fracture of his nose. 22. S later attended the Prince Rupert Regional Hospital where he was diagnosed with a “head injury mild concussion.” Photos of his injuries were taken. POSITION OF THE CROWN

[ 5 ] The Crown submits that Cst. Lofroth should be sentenced to a suspended sentence of probation for a term of one year. The Crown further submits that terms of the probation order should include conditions of counselling and community work service hours. POSITION OF THE DEFENCE [ 6 ] Defence counsel submits that Cst. Lofroth should be sentenced to a conditional or absolute discharge under s. 730(1) of the Criminal Code . [ 7 ] The significant difference between the positions of the parties is that a suspended sentence will result in a criminal record for Cst.

Lofroth whereas a discharge will not result in a criminal record. BACKGROUND AND CURRENT STATUS OF THE CST. LOFROTH [ 8 ] Cst. Lofroth is 53 years old and was born in Dawson Creek. He lived in Terrace from a young age and graduated from Grade 12 in this community. He studied Criminology at Camosun College in Victoria in 1986/87. He joined the Victoria Police in 1987 where he was a Constable engaged in General Duties. [ 9 ] In 1995 he joined the RCMP and was stationed to Prince Rupert. He is currently a Constable with the RCMP stationed in Terrace and has been in this community since 2000.

He has been a member of the General Duties

Section since transferring to Terrace. [ 10 ] Cst. Lofroth was also a member of the RCMP Emergency Response Team (“ERT”) from 1996 to 2014. [ 11 ] He is currently on Administrative leave and assigned to desk duties in Terrace. [ 12 ] As a result of discipline sanctions under the RCMP Act for use of excessive force, Cst. Lofroth has been penalized approximately $2,000.00 from his pay, lost 8 days of leave time and has been removed from the ERT on a permanent basis. [ 13 ] Cst. Lofroth does not suffer from any physical or mental health issues. [ 14 ] Cst.

Lofroth is a family man who is active in a number of activities including hunting, fishing, playing guitar and the sport of jujitsu. He is married and has two children. [ 15 ] A number of letters of character were submitted on behalf of Cst. Lofroth. The letters are from former police colleagues as well as long-time friends. Every letter notes that the writer is aware of the assault charge and the circumstances of the offense. They describe him as a reliable and dependable person.

The letters also say that he is of good character, helps others in need, is generous with his time and resources and has a strong work ethic. VICTIM IMPACT STATEMENT [ 16 ] The victim S submitted a Victim Impact Statement to the Court. In the statement S describes that he suffers from Fetal Alcohol Syndrome Disorder (FASD) and was hospitalized as a result of the incident. He says he struggles with headaches in school. [ 17 ] Photographs of S were also admitted. The photographs show extensive bruising to S’s face. His right eye appears to be swollen shut.

The Crown concedes that it is not possible to establish that the injuries occurred solely as a result of the assault. THE RELEVANT STATUTORY SCHEME AND SENTENCING PRINCIPLES [ 18 ]

Section 266 of the Criminal Code provides that “everyone who commits an assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years”. In this case the Crown proceeded by way of Indictment. [ 19 ]

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing and the objectives to which the purposes may be achieved: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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. [ 20 ]

Section 718.1of the Criminal Code sets out a fundamental principle of sentencing. In this regard, any sentence imposed must be proportionate to the gravity of the offence and the degree of offender responsibility. Accordingly, this court must impose a sentence that is proportional to the seriousness of the offence and the degree of offender responsibility. [ 21 ] The Supreme Court of Canada in R. v. Ipeelee , 2012 SCC 13 indicated that the sentencing principle of proportionality is “intimately tied to the fundamental purpose of sentencing - the maintenance of a just, peaceful and safe society through the imposition of

just sanctions.” The Supreme Court further held that the proportionality principle ensures the imposition of just sanctions by firstly, ensuring that a sentence “reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.” Secondly, it ensures that a sentence “does not exceed what is appropriate, given the moral blameworthiness of the offender. In a Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.” [ 22 ]

Section 718.2 of the Criminal Code 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 the offence or the offender, and, without limiting the generality of the foregoing, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed to be (an) aggravating circumstance. (

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. [ 23 ] In R. v. Berner , 2013 BCCA 188 at para. 9 , the British Columbia Court of Appeal indicated that the “purpose of sentencing is to protect the public through sanctions a court imposes upon a person found guilty of committing an offence.

Each codified objective of sentencing is designed to further the protection of the community”. [ 24 ] In the circumstances of this case, denunciation and deterrence, both general and specific, are the paramount sentencing considerations. Through the sentence that this court imposes, this court is tasked with expressing society’s abhorrence and sending a message to other officers that assaultive conduct will result in consequences. [ 25 ] This principle is referred to in the Nova Scotia Supreme Court in the case of R. v.

Cusack (1978),41 C.C.C. (2d) at page 293 where the Court states: …the paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who are given special authority by our law to deal with individual members of society and to deter such persons from acting in breach of their trust… [ 26 ] In the case of R. v. Shipley 2015 BCPC 276 Judge Harris states at paragraph 20: It must be recognized police officers are cloaked with powers that are intended to assist in the execution of their duties. One such example is the authority to use force.

Police officers must not misuse their powers in the name of performing one’s duties. When the powers are misused, it is a serious matter and it is a breach of the public’s confidence and trust. For these reasons, offences committed by police officers are viewed as a breach of trust and attract a more serious sentence. [ 27 ] I also agree with comments of Judge Harris at paragraph 23 of the Shipley case where he says: A further objective of any sentence imposed is that it should provide reparation for the harm done to the community.

The offence occurred in a public place; it was videotaped by the public, and ultimately posted to social media. Accordingly, there is a need to give back to the community and repair the public harm that has occurred. MITIGATING FACTORS [ 28 ] The guilty plea in this case is a mitigating factor. I also accept that in this case the plea of guilty is an expression of remorse by Cst. Lofroth for his assault on the victim. [ 29 ] Cst. Lofroth has been penalized for his actions through the RCMP discipline process. As a result of the discipline proceedings Cst.

Lofroth has suffered professional and financial adverse consequences. [ 30 ] I accept that a further mitigating factor in this case is attention that has been generated in the media and on the internet as a result of the wide distribution of the cell phone camera viewing of the incident. The cell phone video only captures the final

chapter of the incident showing Cst. Lofroth striking the victim on the side of the head and pushing him into the police vehicle. It does not show the events that took place just before the assault in the time Cst. Lofroth separated the victim from the female and the victim striking Cst. Lofroth several times. [ 31 ] In assessing the weight to be given to the media coverage as a mitigating factor I agree with the words of Judge Koturbash in R. v. Mantler , supra, where he wrote at paragraph 11: …However, I must be careful in not placing too much emphasis on the amount of media attention that has been generated.

To do so, would be to set a different standard for those who are more prominent in our community. [ 32 ] In the Mantler decision, the Court was sentencing an RCMP officer for the offence of assault causing bodily harm. The circumstances surrounding the media coverage in that case were more extensive and invasive and where the Court found that “…many of the negative postings will continue to haunt him (Cst. Mantler) forever.”

[33] Cst. Lofroth does not have any criminal record. [34] Cst. Lofroth has been a peace officer for almost 30 years. No doubt he has engaged in thousands of interactions with the publicin his duties as a peace officer in a professional manner. Sgt. McKenna (now retired) writes a strong letter of support for Cst. Lofroth. He has known Cst. Lofroth since 2000 and worked with him for a number of years in Terrace. [35] In his letter Mr.

McKenna states the following: On all occasions where I attended scenes with Bruce, I observed him to exhibit the professional behaviours that the public expects ofpolice officers: polite, impartial and restrained. On no occasion did I ever observe Bruce to be demeaning to persons being taken intocustody, to use more force than necessary to gain compliance or affect an arrest. AGGRAVATING FACTORS [36] The victim, who was 17 years of age at the time of the assault, was clearly in a vulnerable and defenceless position when hewas struck on the head.

The victim was lying on the ground on his stomach, face down, with his hands cuffed behind his back. [37] The cell phone video clearly depicts Cst. Lofroth cocking his arm back, bent at the elbow, and punching the victim in the head. In my view, it cannot be said that the blow was a reflex or non-deliberate act. I am mindful of the difficult nature of the arrest and thestruggle that took place to subdue the victim. I am also mindful of the fact that the victim struck Cst. Lofroth several times during thearrest process. However, it is my view the facts of the assault in this case are serious. [38] Cst.

Lofroth was not in any danger once the victim was handcuffed and lying on the ground. Furthermore, no other peaceofficer or member of the public was in danger once S was fully handcuffed and on the ground. [39] In the case of R. v. Bottrell, 1981 CanLII, the British Columbia Court of Appeal dealt with a case where a police officer kickeda prisoner. Mr. Justice Seaton stated at para. 4: …the police are in a special position of power over prisoners. If a prisoner strikes a police officer, that is assaulting a peace officer. Theprisoner cannot run from a policeman without fear of a charge of escaping lawful custody.

There is really not much a prisoner can do toprotect himself against assaults by police officers. The justice system puts the police officer in that position of power and, in my view, itis the justice system that must protect the prisoner. [40] The victim was punched in the head where there is a risk of serious injury. [41] Cst. Lofroth is a veteran police officer with 30 years of experience. He has been a member of the Emergency Response Team(ERT) for a number of years. The ERT engages in high stress situations that often involve violence or threats of violence. Cst.

Lofrothwould have received the necessary training to deal with difficult and stressful police situations. Notwithstanding the expert training, hewas not able to restrain himself from assaulting the victim. [42] Cst. Lofroth was in a position of authority and abused his position of trust and authority in relation to the victim. [43] In R. v. Sweet, 2007 BCPC 240 Judge Weitzel states at paragraph 32: …the Canadian public expects a special manner of measured behavior and response from these specially trained members who are thusplaced in a special position of trust.

If that trust is breached in a criminal way, then the consequences will be and should be more severebecause of the special position of trust that the officer held at the time and because of that officer’s knowledge of the consequenceswhich would flow from it perpetration. Police are authorized by law to use force. They must exercise that right responsibly and whenthey fail to do so, they must be held accountable. [44] Cst. Lofroth was previously granted a conditional discharge by this Court on April 12, 2001 by Judge Point in Prince Rupert. Cst.

Lofroth entered a guilty plea to assaulting a prisoner while on duty. The court found that the assault was deliberate and intentional. The prisoner was in cells when he was assaulted. The assault of the prisoner resulted in loss of blood, stitches and medical attention. [45] Judge Point granted Cst. Lofroth a conditional discharge and two years’ probation with conditions that included two hundredhours of community work service and a letter of apology to the victim.

Judge Point concluded the sentence proceedings with thesewords: …Constable Lofroth, I expect that in the future, your behavior such as I have heard in the particular case will not be repeated. CASE AUTHORITIES [46] Counsel have provided me with a number of case authorities. They are as follows: R. v. Tan, [1947] B.C.J. No. 875; R. v. Bottrel, [1982] BCCA No. 352; R. v. MacDonald, [1996] A.J. No. 1099; R. v. Elsharawy, (NL CA), [1997] N.J. No. 249, 119 C.C.C. (3d); R. v. Kidd, [1998] O.J. No. 1739; R. v. Small, 2001 BCCA 91 ,[2001] B.C.J. No. 248; R. v. Lofroth, [2001] BCPC; R. v. Brown, [2004] BCSC No. 151; R. v.

Cronmiller, 2004 BCPC 1 ,[2004] B.C.J. No. 7; R. v. Langlois, [2004] B.C.J. No. 1372; R. v. Tait, 2005 BCPC 273 , [2005] B.C.J. No. 1574; R. v. Sweet,[2007) BCPC No. 240; R. v. Tsui, [2008] NCPC No. 155; R. v. Gillan, [2009] B.C.J. No. 1528; R. v. Klassen, [2001] B.C.J. No. 1074; R.v. Bal, [2013] B.C.J. No. 237; R. v. Whitney, [2015] BCPC No. 27; R. v. Crocker, [2015] N.J. No. 442; R. v. Bhabha, [2015] BCPC; R. v.Shipley, [2015] B.C.J. No. 2201; R. v. Mann, [2016] BCPC. [47] I have also reviewed the decisions of R. v. Mantler, 2013 BCPC 98 , R. v. Conlon, 2011 BCPC, 59 and R. v.Lepine, 2010 ABPC 374 .

[48] In the Tait case, the accused RCMP officer was granted a suspended sentence and 18 months’ probation after pleading guilty tothe offence of assault causing bodily harm. He was a 10 year veteran of the RCMP. The incident involved the accused punching thevictim in the face after the victim had spit in the face of the accused. The victim was in handcuffs and was injured as a result of theassault. The accused completed an anger management program and was the subject of internal RCMP discipline action. [49] In the Bal decision, the court was dealing with an RCMP officer who had no criminal record.

During the arrest of the victim,who was lying on the ground, the accused punched the victim in his head and rubbed his face into the pavement. There was no rationalefor the actions of the accused and the court found that the conduct of the officer was “incomprehensible and gratuitous violence”administered by the officer. The accused took counselling and the court also found that this was the first incident of this kind in thecareer of the accused.

The court rejected a request for a discharge and sentenced the officer to a suspended sentence and 6 months’probation. [50] In the Crocker case, the court was dealing with a correctional officer who assaulted an inmate. The inmate spat on the officer acouple of times and the accused officer responded by striking the victim twice in the face, once with a closed fist and the other with anopen hand. The blows caused the victim’s nose to bleed. The accused did not show any remorse and did not accept responsibility for hisactions.

The court sentenced the officer to a suspended sentence and a term of probation for one year. [51] In the recent decision of Shipley and Wong, both accused were granted a conditional discharge by the court. The accused wereemployed as police officers with the B.C. Transportation Authority. During a brief investigation, both accused assaulted the victim. Theassault was described by the court as being on the lower end of the scale. Both accused were highly regarded, had no prior records, wereremorseful and had been reassigned to other duties.

The court concluded that granting a conditional discharge was in the best interests ofeach accused and not contrary to the public interest. [52] I have read and carefully considered the cases that have been provided to me. Sentencing precedents are helpful but they aremerely a guide. Each case depends on the particular and unique circumstances of the offence and the offender. RELEVANT CONSIDERATIONS AND THE APPROPRIATE SENTENCE IN THIS CASE [53] As Cst.

Lofroth is seeking a conditional discharge as a sentence in this case, it is necessary for this Court to outline the legalframework of the discharge provisions in the Criminal Code. [54]

Section 730. (1) of the Criminal Code states the following: Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears, may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under section 731(2) of the Criminal Code. [55] A discharge is available in this case as the offence has no minimum sentence and maximum sentence is five years.

There aretwo broad considerations to the granting of a discharge. First, it must be in the offender’s best interests; and second, it must not becontrary to the public interest, according to the decision of the British Columbia Court of Appeal in the decision of R. v. Fallofield, (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.). [56] Generally, the first condition would presuppose that Cst.

Lofroth is a person of good character, without previous conviction,that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that theentry of a conviction against him may have significant adverse repercussions. R. v. Fallofield. [57] In the context of the second consideration, the condition the public interest in the deterrence of others, while it must be givendue weight, does not preclude the judicious use of the discharge provisions. R. v. Fallofield. [58] I turn first to the question of whether a discharge would be in Cst.

Lofroth’s best interests. After a careful review and afterconsidering all the circumstances, it is my view that a discharge would not be in the best interests of Cst. Lofroth. [59] In particular I would note the previous conditional discharge that was granted by this Court. A previous discharge is not a bar toanother discharge. However, good character generally presupposes that the offender has not been previously found guilty of a criminaloffence. Courts rarely grant a discharge if a discharge has previously been given. See R. v. Tan (1974), (BC CA), 22 CCC (2nd) 184 (B.C.C.A.); see also R. v.

Sangha, 2006 BCPC 59. [60] I am mindful of the passage of time since the previous discharge. It must also be noted, however, that the two offences weresimilar in nature and both occurred while Cst. Lofroth was on duty as an RCMP officer. Judge Point also found that at the time of theassault Cst. Lofroth was under emotional stress due to the death of his brother. The Court found that the emotional stress was amitigating factor, unlike the present case, where there is no suggestion Cst. Lofroth was dealing with any stress or emotional issues in hislife.

Therefore, I conclude that the principle of specific deterrence would not be satisfied by a discharge in this case. [61] Furthermore, there is no material before me that would suggest that Cst. Lofroth will be in jeopardy of losing his employmentwith the RCMP if he receives a criminal conviction in this case. [62] I turn next to the issue of whether a conditional discharge would not be contrary to the public interest. I have concluded that togrant Cst. Lofroth a discharge in these circumstances would be manifestly contrary to the public interest.

In my view, the principles ofgeneral deterrence, denunciation and respect for the law would not be satisfied by the granting of a discharge. The principles ofsentencing in this case require that a criminal record be imposed. When a peace officer commits a breach of trust while on duty anysentence imposed must emphasize deterrence and denunciation in order to preserve the public faith in the integrity of the justice system.

[ 63 ] In arriving at this conclusion, I have balanced the mitigating and aggravating factors in this case. As this court has pointed out, Cst. Lofroth occupied a position of trust; the young victim was not a danger to him or others and was subdued by handcuffs. The facts in this case are serious.

The video is graphic and clearly depicts a blow to the head that was deliberate. [ 64 ] I have considered the level of provocation by S but have concluded it does not tip the scales in favour of granting discharge on a consideration of the public interest. [ 65 ] The public interest in general should also take into account the specific interests of First Nations youth. They are part of the community that must and should be included in any reference to the “public interest”.

It is also important and vital for these youth to understand that if they are arrested and detained they will not be abused by persons in authority and subjected to harm.

In saying this, I am in no way condoning the actions of S during the arrest process. [ 66 ] I agree with the position of the Crown and find that a fit and proper sentence having regard to the circumstances of the offender and facts of the offence is a suspended sentence. [ 67 ] Probation is required, in my view, to address the principles of deterrence, denunciation and rehabilitation. [ 68 ] The Crown is not seeking a DNA order. [ 69 ] The Crown is also not seeking a firearms prohibition under

section 110 of the Criminal Code . [ 70 ] I have concluded that it is not appropriate to make a DNA order in this case. I am also in agreement that a firearms prohibition is not appropriate in this case. [ 71 ] Accordingly, there will be a suspended sentence with a probation order of 12 months. The following conditions will apply to the probation order: 1. You must keep the peace and be of good behavior. 2. You must appear before the court when required to do so by the court. 3.

You must notify the court or the probation officer in advance of any change in name or address, and promptly notify the court or the probation officer of any change of employment or occupation. 4. You must report in person to the probation officer in Terrace, by 3:00 p.m. today and after that, you must report as directed by the probation officer. 5. When first reporting to the probation officer, you must inform him or her of your residential address and phone number. 6. You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer.

Without limiting the general nature of this condition, the intakes, assessments, counselling or programs may relate to anger management. 7. Under the direction and supervision of the probation officer, you shall successfully complete 100 hours of community work, which shall be completed no later than December 31, 2017. 8. Your community work service may be performed, in part, for the benefit of First Nations youth, as directed and with the permission of your probation officer. [ 72 ] You must also pay a victim fine surcharge of $200.00. The Honourable Judge E.F. de Walle Provincial Court of British Columbia