R. v. Millington, 2015 BCSC 1380

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Millington, 2015 BCSC 1380 Date: 20150622 Docket: 25752 Registry: Vancouver Regina v. Kwesi Millington Before: The Honourable Mr. Justice Ehrcke Oral Reasons for Sentence Counsel for the Crown: R.C.C. Peck, Q.C. S.K. Fenton Counsel for the Accused: R.R. Hira, Q.C. S.M.R. Conroy Place and Date of Hearing: Vancouver, B.C. May 7, 2015 Place and Date of Judgment: Vancouver, B.C.

June 22, 2015 INTRODUCTION [ 1 ] THE COURT: Kwesi Millington was convicted on February 20, 2015, of one count of perjury for knowingly making false statements under oath at the Braidwood Inquiry into the October 2007 death of Robert Dziekanski at Vancouver International Airport ("YVR"). He is before me today for imposition of sentence following sentencing submissions on May 7, 2015. FACTS [ 2 ] Cst. Kwesi Millington was one of four RCMP officers who attended YVR Airport and dealt with Mr. Dziekanski following his arrival from Poland on October 14, 2007. The three other officers were Cst. Bill Bentley, Cst.

Gerry Rundel, and Cpl. Benjamin Robinson. During their brief encounter, Cst. Millington applied a conducted energy weapon or Taser to Mr. Dziekanski five times, and Mr. Dziekanski died shortly thereafter. [ 3 ] A public inquiry was held into Mr. Dziekanski's death, presided over by its commissioner, Thomas Braidwood, Q.C. Kwesi Millington testified at the inquiry from March 2 to 4, 2009. The other three RCMP officers also testified. All four officers were subsequently charged with perjury in relation to their testimony, but each of the four had a separate trial.

Although all four were charged with perjury, the particular averments of their alleged perjury were not identical. Two of the four officers were acquitted at trial. Kwesi Millington is one of the two that was convicted. [ 4 ] Kwesi Millington's indictment contained 10 averments of perjury. His conviction was based on a finding that the Crown had proven Averments 1, 2, 3, 4, 8, and 9 beyond a reasonable doubt.

Those averments were that he committed perjury: 1) when he testified that, he believed Robert Dziekanski was still standing when he deployed the Conducted Energy Weapon for a second time; 2) when he testified that, he did not see Robert Dziekanski falling down during the first deployment of the Conducted Energy Weapon; 3) when he testified that, he believed Robert Dziekanski remained standing during at least some portion of the second Conducted Energy Weapon deployment; 4) when he testified that, at the time of making his police notes and giving his statements on October 14 and 15, 2007, he did not realize that Robert Dziekanski had fallen to the ground on his own as a result of the Conducted Energy Weapon's deployment; 8) when he testified that, at the time of his statements, he thought the other three officers had to wrestle Robert Dziekanski to the ground, and he was surprised to learn that that did not happen; 9) when he testified that he did not discuss with his fellow officers the details of the incident involving Robert Dziekanski before providing his statement to the Integrated Homicide Investigation Team on the morning of October 14, 2007.

[ 5 ] I shall not here recite in depth the evidence and findings of fact that led to Kwesi Millington's conviction, as they are dealt with extensively in my reasons for conviction which are indexed at 2015 BCSC 515 . The present reasons for sentence should be read in conjunction with those reasons for conviction. [ 6 ] Suffice it to say here that one piece of evidence that played a prominent role in the trial was the video of the encounter between the RCMP officers and Mr.

Dziekanski that had been taken by a civilian bystander at the airport (the "Pritchard Video") which clearly showed, amongst other things, that Mr. Dziekanski fell to the ground during the first Taser deployment and that he was not wrestled to the ground by any of the RCMP officers. GENERAL PRINCIPLES OF SENTENCING [ 7 ] The principles of sentencing have evolved in Canadian common law and are now largely codified in the Criminal Code .

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. As set out in s. 718 , the objectives of sentencing include the denunciation of unlawful conduct, deterrence of the offender and others from committing offences, separation of the offender from society where necessary, rehabilitation of the offender, reparation for harm done, and promotion of a sense of responsibility in the offender, including acknowledgment of the harm done. [ 8 ]

Section 718.1 articulates the most basic principle of sentencing, namely that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 9 ]

Section 718.2 sets out a number of specific principles. A sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. An offender should not be deprived of liberty if a less-restrictive sanction is appropriate. All reasonable sanctions other than imprisonment should be considered, with particular attention to the circumstances of aboriginal offenders. A sentence should be increased or reduced to take account of any aggravating or mitigating circumstances. [ 10 ]

Section 722 provides for the introduction of a victim impact statement on sentencing. I ruled that the one-page statement of Mr. Dziekanski's mother could be introduced. In that statement, she eloquently expressed the effect that Kwesi Millington's perjury has had on her. She wrote in part: The lies that were told were meant to make people believe my son Robert acted in a different way than he actually did. If it hadn't been for the video taken by Mr. Paul Pritchard no one would have ever known the truth and my son's memory would have been tainted forever.

She went on to say that her faith in the honesty of the RCMP has forever been shaken. CIRCUMSTANCES OF THE OFFENDER [ 11 ] I now turn to the circumstances of the offender. [ 12 ] Mr. Millington is now 38 years of age. He has no previous criminal record. He was born in Montreal, and his parents were from Trinidad. His father was a family physician, and his mother was a psychiatric nursing assistant. His parents separated when he was young, and he then lived with his mother in Toronto. After high school, he went on to Ryerson University, where he obtained a bachelor of commerce degree.

In 2004, he was accepted into the RCMP and began his training. His first posting was to Richmond, British Columbia. [ 13 ] Mr. Millington's counsel has submitted over 50 letters of reference from police officers, friends, family and others, attesting to his good character. They describe him variously as polite, quiet, conscientious, caring, hardworking, and diligent in the conduct of his duties. [ 14 ] The defence has also submitted a report by a psychologist, Dr.

Deborah Nixon, who has worked with him since April 2009 to, as she said, "explore a number of problematic issues that he has never before been able to share with anyone." She described the symptoms of anxiety and depression that caused him to go on stress leave in March 2009. She also discussed issues from his childhood when he was bullied or harassed. She wrote: Painful and traumatic experiences, as difficult as they are to undergo, also provide opportunities for self-growth if adequately processed within a therapeutic context.

It would appear that this event has contributed to a much greater openness and sensitivity in Kwesi to his own inner world and to the feelings of others. Kwesi has stated that part of his motivation for becoming a law enforcement officer was to help others. In my opinion, this event and the emotional aftermath has resulted in an even deeper commitment to helping people whether in a professional capacity or in his day to day life. [ 15 ] She went on to say: If he is unable to stay employed with the RCMP, he has stated that he wants to engage in another career path that would involve some aspect of helping others.

POSITION OF THE PARTIES [ 16 ] Counsel for Mr. Millington submits that in the circumstances of this case there should be a one-year conditional sentence. He

relies on the following cases: R. v. Adam, 2007 BCSC 764; R. v. Bosley (1992), (ON CA), 59 O.A.C. 161 (C.A.); R.v. D.L., (BC CA); R. v. Deane, [1997] O.J. No. 3578 (Ct. J. (Prov. Div.)), aff'd (ON CA); R. v.Ewanchuk, 2002 ABCA 95; R. v. Lee, 2012 ABCA 17; R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500; R. v. Nasogaluak,2010 SCC 6; R. v. Spenard (24 June 2011), Vancouver Registry No. 219187 (B.C.P.C); R. v. Sweeney, (BC CA); andR. v. Tasew, 2011 ABCA 241. [17] Most of those cases have been cited for general sentencing principles and do not relate specifically to perjury. The one exceptionis Spenard.

That was a case from the Provincial Court of British Columbia. The accused was a police officer who entered a guilty plea toa charge of perjury. The Provincial Court judge acceded to a joint submission of counsel and imposed a nine-month sentence to be servedby way of a conditional sentence order. The case was unusual because Mr. Spenard admitted to his misleading testimony almostimmediately after he gave it, and his perjury therefore had no impact on the trial in which it occurred. The trial judge said at para. 4: [4] When initially confronted through the process of cross-examination Mr.

Spenard continued, in a sense, to attempt to conceal hismisleading statements. However, it is apparent from the transcript read by Mr. Van Alstine that Mr. Spenard eventually recognized thesituation and acknowledged in cross-examination that he had not been truthful. [18] The Crown submits that the circumstances of Spenard are very different from the case at bar.

In the Crown's submission, theappropriate range of sentence is from 18 to 36 months' imprisonment, and that since the perjury was committed by a police officer swornto uphold the administration of justice, the sentence should be at the high end of that range. [19] The Crown opposes the imposition of a conditional sentence and refers to R. v. Schertzer, 2015 ONCA 259, where the OntarioCourt of Appeal set aside a 45-day conditional sentence imposed at trial and substituted a sentence of three years' imprisonment, butstayed the operation of the sentence because the original sentence had already been served.

In that case, at para. 136, the Courtemphasized that when police officers commit perjury "the objective of denunciation has heightened significance". MITIGATING CIRCUMSTANCES [20] In addition to the fact that the accused has no previous record and has many letters of reference attesting to his good character,the defence submits that there are several additional mitigating circumstances. [21] First, the defence points to the "delay" from the time of the offence until today; that is, from March 2009 to June 2015.

Thedefence submits that the accused has had to live with the stress of this matter being unresolved all these years and says that this shouldresult in a lower sentence. [22] As pointed out by the Crown, however, the accused has not made an application for a finding that there has been delay withinthe meaning of s. 11(

b) of the Charter of Rights. In any event, much of the so-called delay is attributable to the defence, not the Crown.In my view, the defence has not established any basis for concluding that there has been delay in these proceedings of a sort that wouldhave a mitigating effect on sentence. [23] Next, the defence submits that the accused has already taken steps to promote his rehabilitation, namely, his counsellingsessions with Dr. Nixon. However, the tenor of Dr.

Nixon's report suggests that the purpose of the counselling was to deal with personalproblems faced by the accused that are unrelated to rehabilitation for the offence of perjury. Dr. Nixon stated that the accused startedcounselling sessions with her in April 2009, shortly after he went on stress leave in March 2009. March 2009 is the month that theaccused testified at the Braidwood Inquiry. Dr. Nixon said nothing in her report about why the accused only started the counsellingsessions then and did not seek counselling in 2007, following the traumatic events at YVR which led to Mr. Dziekanski's death.

I findthat there is nothing in Dr. Nixon's report that would lead one to conclude that the accused is now less likely to commit perjury becauseof his counselling sessions with her. [24] The accused submits that this case has attracted a great deal of media attention and suggests that this should result in hisreceiving a lower sentence. An essential part of this submission is the claim that the publicity has cast the accused in a negative light.However, the defence has produced no evidence that this has been the case.

While it is undoubtedly true that this case has been widelypublicized, I do not agree that the publicity generally cast the accused in a bad light, at least not prior to his conviction. [25] The defence submits that it is a mitigating circumstance that the Braidwood Inquiry was not misled by the accused's perjury. AsI will explain in more detail below, I do not agree with that submission.

We simply do not know what findings and recommendations thecommission would have made if it had had the benefit of truthful testimony from the accused. [26] Next, the defence submits that it is a mitigating circumstance that the accused is remorseful for the death of Mr. Dziekanski. Ido not find that to be an accurate description of the accused's attitude toward Mr. Dziekanski's death. While I have no doubt that theaccused is saddened by the death, that is not the same thing as being remorseful about it.

At the inquiry, he was asked whether, with thebenefit of hindsight, there is now anything that he would have done differently, and he answered, "No." Moreover, the accused's perjuryat the inquiry is hardly consistent with his being remorseful about Mr. Dziekanski's death. As was pointed out in the victim impactstatement of Mr. Dziekanski's mother, the perjury of Cst. Millington had the effect of casting Mr. Dziekanski's conduct in a worse lightthan was shown to be the case in the Pritchard Video. In any event, I do not consider remorse about the death to be particularly relevantto this sentencing proceeding. Mr.

Millington is before me to be sentenced for his perjury at the inquiry in 2009. He is not beingsentenced for anything that he did or did not do at YVR Airport in 2007. [27] I say nothing here about remorse for the perjury itself. Counsel for Mr. Millington has stated that he intends to file an appealfrom the conviction for perjury, and in these circumstances, it cannot be held against the accused that he has not expressed remorse forthat offence. [28] Finally, the defence submits that because the accused is a police officer, he will have a harder time serving a sentence of

imprisonment, and this should affect the sentence that I impose. I agree that this is a consideration that must be kept in mind, as wasdiscussed by Hill J. in R. v. Cook, 2010 ONSC 5016, but it must be balanced against the need to impose a fit sentence suitable to achievethe sentencing objectives of denunciation and deterrence. [29] In sum, it appears that the most significant mitigating circumstances in this case are the fact that Mr.

Millington has no previouscriminal record, and the numerous letters of reference which show that he has considerable support in the community from people whoconsider him to be of good character. AGGRAVATING CIRCUMSTANCES [30] Aggravating circumstances in this case are that perjury is a very serious offence and is even more serious when committed bysomeone such as a police officer whose sworn duty is to uphold rather than undermine the administration of justice. The fact that theperjury was in relation to a tragic death must not be considered in such a way as to suggest that Mr.

Millington is being sentenced for hisinvolvement in that death. Mr. Millington has not been charged with manslaughter or criminal negligence causing death or any othercrime in connection with the death of Robert Dziekanski. To sentence him as if he were charged with such an offence would be an errorof law: R. v. Ferris, 2011 SKCA 20, at para. 21.

RANGE OF SENTENCE FOR PERJURY [31] The seriousness of the offence of perjury is demonstrated by the fact that Parliament has prescribed a maximum penalty of 14years' imprisonment. [32] Counsel have referred me to a number of cases that illustrate the range of sentence that courts have imposed for this offence. [33] I have already mentioned Spenard, where a nine-month conditional sentence was imposed following a guilty plea to a charge ofperjury. [34] In R. v. Kusnezoff, [1991] B.C.J.

No. 421 (C.A.), our Court of Appeal substituted a sentence of six months' imprisonment plustwo years' probation for the sentence of 18 months' imprisonment and two years' probation that had been imposed by the trial judge. Theoffender in that case was 22 years old and had one previous conviction. [35] In R. v. Mutton, [1987] B.C.J. No. 2697 (Co. Ct.), a one-year sentence of imprisonment was imposed for perjury. The accusedthere had given false evidence at a trial, but his evidence was about a collateral matter, and the perjury was not committed for thepurpose of affecting the outcome of the trial. [36] In R. v.

Corbett, 2006 BCCA 257, the British Columbia Court of Appeal reduced an 18-month sentence to one of 12 months fora 24-year-old offender with a modest record, who pled guilty to perjury. The Court noted that perjury is a more serious offence thanobstruction of justice. [37] In R. v. C.D. (2000), (ON CA), 132 O.A.C. 133 (C.A.), a one-year consecutive sentence for perjury wasupheld. In that case, the accused had sworn a false affidavit in support of a bail application. The Court noted at para. 7: Perjury is a serious offence.

As has been said in many cases, it strikes at the heart of the administration of justice. [38] In R. v. Jordan (1986), 1986 ABCA 168 , 47 Alta. L.R. (2d) 85 (C.A.), the Alberta Court of Appeal imposed sentencesof two and one-half years' imprisonment on two offenders convicted of perjury. With respect to one of them, the court remarked that thesentence would have been four years, but for the credit awarded for time in pre-trial custody. The Court observed: Perjured testimony strikes at the very heart of the judicial system.

The court has always taken a most serious view of such offences andlengthy sentences are the usual course. [39] As mentioned above, in R. v. Schertzer, the Ontario Court of Appeal set aside a conditional sentence of 45 days and imposed asentence of 36 months' incarceration on police officers convicted of perjury in relation to their testimony at a preliminary inquiry. Theperjury related to whether the police carried out a search before or after a warrant was obtained. [40] In R. v. Johnson, [1990] B.C.J. No. 307 (C.A.), a 27-year-old accused with a record of 20 offences pled guilty, inter alia, toperjury.

The British Columbia Court of Appeal upheld his trial sentence of three years for the perjury, noting that: The accused could on either perjury or breaking and entering have been sentenced to a much longer term than he was, in light of all thecircumstances of the case, and particularly his record. [41] In R. v. Martin (1993), (NB KB), 141 N.B.R. (2d) 227 (Q.B.), the Court imposed a sentence of three-and-one-half years' imprisonment on an accused who pled guilty to perjury in connection with his testimony as a witness at a murder trial. Hehad a record that was described as "not extensive". [42] In R. v.

Glauser (1981), 1981 ABCA 345 , 25 C.R. (3d) 287 (ABCA), the Alberta Court of Appeal substituted asentence of six years' imprisonment for the sentence of two years less one day that had been imposed at trial. That case involved a32-year-old accused with a long criminal record who was found guilty of perjury in relation to his testimony at a murder trial. [43] In R. v. Reyat, 2014 BCCA 101, the British Columbia Court of Appeal upheld an effective sentence of nine years' imprisonmentfor perjury committed in the course of a murder trial.

ANALYSIS [ 44 ] The cases above illustrate a range of sentence extending up to nine years' imprisonment. The longer sentences have been imposed in cases where the perjury was committed by witnesses in serious criminal trials such as murder.

Indeed, the case law supports the view that the gravity of the proceeding at which the perjury occurs and the effect of that perjury on the proceeding are important factors in determining the fit and appropriate sentence for perjury. [ 45 ] In Jordan , the Alberta Court of Appeal listed five factors that should be considered in determining the length of a sentence for perjury: (1) the relative seriousness of the offence with respect to which the perjured testimony was given; (2) the effect, if any, on the outcome of the trial by reason of the perjured evidence; (3) whether the testimony dealt with a vital part of the evidence; (4) whether the perjured evidence led to the implication of an innocent person in a crime, which would ordinarily be a most aggravating factor; (5) whether the perjury was planned and deliberate or the result of a sudden temptation in the course of giving evidence. [ 46 ] That list of factors was endorsed by the British Columbia Court of Appeal in R. v.

Reyat . [ 47 ] The present case is unusual in that Cst. Millington's perjury did not occur in the course of a criminal trial, but rather in the course of a public inquiry. Counsel have not referred me to any cases dealing specifically with perjury at a public inquiry.

Nevertheless, in my view, the factors enumerated in Jordan and endorsed by our Court of Appeal in Reyat , remain a useful guide in determining the fit and appropriate sentence in the present case. [ 48 ] The first factor from Jordan is "the relative seriousness of the offence with respect to which the perjured testimony was given." At first blush, this factor may seem to have no application to the present case because the Braidwood Inquiry was not a criminal trial where someone was charged with an offence. [ 49 ] We should ask ourselves, however, why the Court in Jordan considered this factor to be relevant, and why other courts have found that perjury in the context of a murder trial is particularly serious. [ 50 ] In my view, the answer is that a murder trial is a solemn inquiry into the truth of who or what was responsible for the death of a human being.

Because the answer to that question is of such grave importance to society, deliberate actions by a witness to undermine the effectiveness of the truth-finding function must be vigorously condemned. [ 51 ] In the present case, Cst. Millington perjured himself while testifying at a public inquiry into the death of Robert Dziekanski. The inquiry was not a criminal trial, and no one at the inquiry was in jeopardy of being convicted of any offence in connection with that death.

Nevertheless, the inquiry had this in common with a criminal trial: it, too, was a solemn inquiry into the circumstances surrounding the death of a human being. An important objective of the inquiry was to uncover the facts so that we could understand why Mr. Dziekanski's untimely death occurred.

An understanding of the circumstances that led to his death is important for us as a society in order that such a terrible occurrence might not happen again. [ 52 ] The inquiry comprised 61 days of evidentiary hearings at which 91 witnesses testified under oath or affirmation, followed by five days of closing submissions. In my view, while the inquiry was not a criminal trial, it was a proceeding of comparable gravity, solemnity, and importance to society and to the administration of justice.

In my view, therefore, the application of the first of the Jordan factors to the circumstances of this case weighs in favour of a sentence at the higher end of the range. [ 53 ] The second and third of the Jordan factors are, "the effect, if any, on the outcome of the trial by reason of the perjured evidence" and "whether the testimony dealt with a vital part of the evidence." [ 54 ] Counsel for Cst.

Millington submits that his perjury had little effect on the outcome of the inquiry because Commissioner Braidwood was not taken in by it. [ 55 ] In his final report, Commissioner Braidwood was critical of the testimony of the accused. He stated at page 256: The initial claims by all four officers in their police notes and statements to IHIT investigators that they wrestled Mr. Dziekanski to the ground has been shown, by the Pritchard video, to be untrue. These were either innocent inaccuracies by the four officers or deliberate misrepresentations of what had happened.

In my view, they were the latter, and they were made for the purpose of justifying their actions. But for the Pritchard video, we would likely never have learned what really happened, and these officers' revisionist accounts would have lived on. [ 56 ] Despite the fact that Commissioner Braidwood recognized the deliberate misrepresentations, the work of the inquiry was still frustrated by it.

Amongst the many critical questions to which we should have had answers is this: How could it happen that a police officer, trained in the use of a Taser and trained in the policies regarding its proper use, have repeatedly fired the Taser for a second and then a third and then a fourth and then a fifth time into a man who fell to the ground during the first tasering? [ 57 ] Cst. Millington's perjury impaired the ability of the inquiry to obtain a full and accurate answer to this question, because Cst. Millington insisted falsely that he believed Mr.

Dziekanski did not go down to the ground as a result of the first firing of the Taser,

but rather had to be wrestled to the ground by the officers. That false explanation stood in the way of getting to a true explanation.Cst. Millington's perjury, therefore, did deal with one of the most vital parts of the evidence, and it did have a deleterious effect on theoutcome of the inquiry. [58] The fourth of the Jordan factors is "whether the perjured evidence led to the implication of an innocent person in a crime".Since the inquiry was not a criminal trial, Cst. Millington's perjury did not lead to the conviction of an innocent person.

Nevertheless, inone sense it did lead to the implication of an innocent person, because it suggested that Mr. Dziekanski himself was the author of hismisfortune. Cst. Millington's perjury implied that the reason Mr. Dziekanski was tasered a second time was that he did not go down tothe ground as a result of the first application of the Taser, but rather had to be wrestled to the ground by the officers. That testimony wasfalse and it ultimately cast Mr.

Dziekanski in a negative light. [59] We come then to the fifth of the Jordan factors, "whether the perjury was planned and deliberate or the result of a suddentemptation in the course of giving evidence." In this case, the answer is clear. Cst. Millington's perjury extended over several days oftestimony. It was not a momentary lapse. Indeed, the roots of the perjury extend back to the period immediately followingMr. Dziekanski's death when Cst.

Millington was completing his notes and giving statements to the IHIT investigators. [60] To summarize, I find that all five of the Jordan factors weigh towards the imposition of a sentence at the higher end of therange for perjury. SUITABILITY OF A CONDITIONAL SENTENCE [61] Counsel for Cst. Millington submits that the sentence imposed in this case should be a conditional sentence. This is opposed bythe Crown. [62] The preconditions for imposing a conditional sentence are set out in s. 742.1 of the Criminal Code. They were discussed by theSupreme Court of Canada in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61.

There, at paras. 46 to 47, Chief Justice Lamer,writing the judgment of the Court, said this: 46 This provision lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. 47 In my view, the first three criteria are prerequisites to any conditional sentence.

These prerequisites answer the question ofwhether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditionalsentence is appropriate. This decision turns upon a consideration of the fundamental purpose and principles of sentencing set out inss. 718 to 718.2. [63] Regarding the requirement that the term of imprisonment imposed must be less than two years, the Court rejected theapplication of a rigid two-step approach. Chief Justice Lamer observed at paragraph 52: 52 This two-step process does not correspond to the reality of sentencing.

In practice, the determination of a term of imprisonment isnecessarily intertwined with the decision of where the offender will serve the sentence. A judge does not impose a fixed sentence of “xmonths” in the abstract, without having in mind where that sentence will be served . . . Furthermore, when a conditional sentence ischosen, its duration will depend on the type of conditions imposed. Therefore, the duration of the sentence should not be determinedseparately from the determination of its venue. [64] In the present case, the first and third prerequisites for a conditional sentence are satisfied.

The offence of perjury does not havea minimum term of imprisonment, and I am satisfied that the safety of the community would not be endangered by Cst. Millingtonserving his sentence in the community. He has remained in the community throughout these proceedings. [65] With respect to the third requirement, however, I find that a sentence of less than two years would be below the range of fitsentences for this offence and this offender. [66] In any event, even if the third requirement were met, I would still find that a conditional sentence should not be imposedbecause of the fourth criterion.

In all the circumstances of this case, a conditional sentence would not be consistent with the fundamentalpurpose and principles of sentencing set out in s. 718 to 718.2, because it would not adequately address the need for denunciation,general and specific deterrence. [67] This conclusion is supported by the case authorities. In R. v. Desnomie, 2005 SKCA 148, the Saskatchewan Court of Appealsubstituted a sentence of two years less one day in jail for the conditional sentence of 18 months imposed at trial on a charge of givingcontradictory evidence, contrary to s. 136(1) in the context of a murder trial.

The Court observed: [7] The conditional sentence in no way reflects the gravity of the situation. To repeat, the respondent gave false testimony in thecourse of a trial for second degree murder of a child. The investigation of who caused a homicide is one of the most significant that acourt can undertake and one that must be carried out with openness and with the greatest attention to seeking the truth in order topreserve society’s respect for the judicial system.

It is fundamental in any judicial proceeding that witnesses treat the process with respectand tell the truth, and that if they do not, the court deal with them appropriately to show not only other witnesses, who may potentially do

the same, but society that it takes extremely seriously the process of ascertaining the truth. This can no where be more important, both forthe system itself and for the respect society gives to the system as a means of resolving disputes in society, than in the case of ahomicide. The courts must treat this process with utmost seriousness, not only for the parties involved in each case, but because societymust be confident that these questions can be fully dealt with in an appropriate manner by the court system.

Structure in society dependson this. . . . [12] In the circumstances of this case, the sentence imposed took no account of the above principles with respect to determining thegravity of the offence with respect to which the false evidence was given. It in no way is adequate for specific or general deterrence andundercuts the respect of society for the process of the Court and the Court’s guardianship of that process. [Emphasis added.] [68] Similarly, in R. v. Schertzer, the Ontario Court of Appeal overturned the conditional sentences imposed at trial and substitutedsentences of three years' imprisonment.

The Court reviewed the jurisprudence and summarized the principles of sentencing applicablewhen police officers have been convicted of perjury. In coming to the conclusion that a conditional sentence would not adequately satisfythe need for deterrence and denunciation, the Court stated at paras. 132 to 137: [132] Public confidence in the honesty of the police is fundamental to the integrity of the criminal justice system. As Moldaver J.A.wrote in Schaeffer v.

Wood, 2013 SCC 71 at para. 52, citing Sir Robert Peel: “the police are the public and…the public are the police… The wisdom of this statement lies in its recognition that public trust in thepolice is, and always must be, of paramount concern.” [133] Police officers are sworn to uphold the law. In R. v. Feeney, 2008 ONCA 756, 238 C.C.C. (3d) 49, at para. 8, this court endorsedthe following passage from R. v. Cusack (1978), (NS CA), 41 C.C.C. (2d) 289 (N.S.

S.C.(A.D.)): [T]he paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who aregiven special authority by our law to deal with individual members of society, and to deter such persons from acting in breach of theirtrust . . .

The commission of offences by police officers has been considered on numerous occasions by the Courts, and the unanimous finding hasbeen that their sentence should be more severe than that of an ordinary person who commits the same crime, because of the position ofpublic trust which they held at the time of the offence and their knowledge of the consequences of its perpetration . . . [134] The convictions relate to the administration of justice. Civilian offenders who interfere with the proper investigation andprosecution of criminal offences have received significant sentences.

As the British Columbia Court of Appeal noted in R. v. Hall, 2001BCCA 74, at para. 12: Obstruction of justice or attempting to obstruct justice strikes at our system of a lawful society. The message must be clear that this typeof interference with the community system for handling criminal offences will not be tolerated. It is for this reason that the courts mustact firmly to express society’s disapproval and denunciation of such conduct. [135] Perjury convictions must attract similar deterrent sentences. Perjury strikes “at the very root of our system of justice.” (R. v.Glauser (1981), 16 C.C.C. (2d) (Ont.

C.A.) Time and time again courts have referred to the fact that perjury undermines the very heartof the administration of justice. (see: R. v. Turner (1981), 65 C.C.C. (3d) 487; R. v. C.D. [2000] O.J. No. 1668 (C.A.) As stated inGlauser: The administration of justice is based upon the truthful testimony of those persons who are called to give evidence under oath.

Thefreedom, or on the other hand, the incarceration of accused persons in serious criminal offences depends totally upon the truthfulness ofthose witnesses. [136] When the perpetrators of the crime are police officers sworn to uphold the law, the objective of denunciation has heightenedsignificance. Police officers owe a special duty to be faithful to the justice system. [137] The sentencing judge addressed the objective of general deterrence. However, the 45-day conditional sentences do not reflectsociety’s condemnation of the conduct.

Nor do they address the need to denounce the crimes and are thus demonstratively unfit. [69] In the circumstances of the present case, where a police officer has undermined the administration of justice by committingperjury in the course of a serious public inquiry into the death of a human being, the paramount sentencing objectives must bedenunciation and general deterrence.

While the other objectives of sentencing, including rehabilitation, must be given seriousconsideration, they cannot displace the objectives of denunciation and deterrence, and I find that those sentencing objectives cannotadequately be achieved by the imposition of a conditional sentence.

CONCLUSION [70] I agree with the Crown's submission that this case calls for the imposition of a sentence at the higher end of the range from 18months to three years. [71] I also agree with the defence, however, that some consideration must be given to the fact that, because of his background as apolice officer, this accused's imprisonment may be more difficult for him to serve. In recognition of that fact and the other mitigatingcircumstances to which I have referred, I will not impose a sentence of three years, but rather one of 30 months' imprisonment.

[ 72 ] Mr. Millington, would you please stand. [ 73 ] You have been convicted of the offence of perjury. This is a very serious offence against the administration of justice. You committed this offence at a time when your sworn duty was to uphold the administration of justice. I must impose a sentence upon you that expresses society's denunciation of that offence and that will serve to deter you and others from committing such an offence in the future. [ 74 ] I sentence you to a term of imprisonment of 30 months. [ 75 ] As well, pursuant to s. 737 of the Criminal Code , there will be a victim fine surcharge of $100 payable within 14 days. The Honourable Mr. Justice W.F. Ehrcke