R. v. Ardrey, 2022 ONCJ 520

CITATION: R. v. Ardrey , 2022 ONCJ 520 DATE: October 8, 2022 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. DAVID ARDREY ********** REASONS FOR SENTENCE ********** BEFORE THE HONOURABLE JUSTICE D.A. HARRIS On October 8, 2022, at Milton ********** A P P E A R A N C E S : Counsel for the Crown P. Scrutton Counsel for Mr.

Ardrey Machado, P. *********** COURTROOM M15 MILTON COURTHOUSE *********** HARRIS, J, Orally: David Ardrey pled guilty to a charge that he did between January 1, 2020 and January 1, 2021 at the City of Burlington, in the Regional Municipality of Halton, in the Province of Ontario fraudulently and without colour of right obtain directly or indirectly a computer service, to wit; the Canadian Police Information Centre and or the Halton NICHE Records Management System, contrary to s. 342.1(1) of the Criminal Code . Mr. Ardrey waived the limitation period and Crown counsel then elected to proceed summarily.

Mr. Ardrey is before me today to be sentenced. Crown counsel suggested that I suspend sentence and place Mr. Ardrey on probation for one year. The terms of probation would include a provision that he not contact or be near J.M. It would also include a provision requiring him to perform 60 to 80 hours of community service. Counsel for Mr. Ardrey suggested that I impose a conditional discharge with probation for one year. She agreed that I should impose a no-contact, non-attendance condition but argued that a community service order would be problematic.

I am satisfied that a suspended sentence with probation for one year is appropriate. In reaching that conclusion, I have taken into account: 1) the law regarding conditional discharges; 2) the fundamental purpose and principles of sentencing; 3) the facts underlying the offence; 4) the impact on the victim; and 5) the background of Mr. Ardrey. I previously dealt with the law regarding conditional discharges and the fundamental purpose and principles of sentencing in the context of a police officer defendant in R. v. Murray, 2018 O.J. No. 3083 .

I will not repeat myself here but note that I adopt what I said in paragraphs 20 through 51 inclusive of that decision. I further note that the following statutory provisions are applicable in this case.

Section 718.2(a)(iii) of the Criminal Code provides that, Evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

Section 718.2(a)(iii).1 of the Criminal Code provides that, Where the offence had a significant impact on the victim, considering her age and other personal circumstances, including her health and financial situation, this too is an aggravating circumstance and that the sentence should reflect that. Both counsel have also provided me with a number of other cases which I have reviewed and taken into account. Before applying the above principles, it was necessary for me to take into account the facts underlying the offence, the impact on the victim and the background of Mr. Ardrey.

The facts were set out in an Agreed Statement of Fact that was made an Exhibit. They indicate that Mr. Ardrey is a uniform constable with the Halton Regional Police Service where he has been employed for fifteen years. He was previously with the Brantford Police Service. He is currently 55 years old. In the course of his police duties, he would often attend local motels to check for guests who might have outstanding warrants or involvement in human trafficking. This was a part of proactive community policing which encompassed all crimes.

Over a three-year period, beginning in 2018, he came to know a woman who in the Agreed Statement of Facts was identified as A.A. She is currently aged 25. She worked at the front desk of a motel in the region. They became friends and eventually told each other very personal details about their lives. Mr. Ardrey would come to this motel often while on duty. He did not see, socialize or speak to A.A. while off duty. On the night of September 9, 2021, at approximately 9:30 p.m., he attended the motel while on patrol. While there, he spoke to A.A. and expressed his feelings for her.

There is a factual disagreement between the parties that is not necessary to resolve on this plea about whether his expression of his feelings for A. A. was unrequited or whether she reciprocated. He next contacted her personal cell phone

by text the following evening. He apologized for putting too much pressure on her during their conversation the night before. She was not happy to receive the text as all their previous communications had occurred during his visits to the motel and she did not know how he came to have her number. She replied angrily and told him to forget about her. He apologized. He had obtained her phone number in the course of his duties in a previous investigation from 2019. He advised he would no longer communicate with her.

They had no subsequent contact until the afternoon of October 1, 2021 when he attended the motel after his shift while on duty. They spoke outside of the motel. He again discussed his feelings for her. He explained in relation to his September 10, 2021 text to her, that he had obtained her cell phone number from a prior police investigation. She again told him to leave her alone. He did not contact her again after that. Soon after she spoke to another police officer whom she knew. She spoke about her interactions with Mr. Ardrey.

This officer encouraged her to provide a statement to the Halton Police who ultimately contacted the Special Investigations Unit. During its investigation into the matter, the SIU obtained a record of Mr. Ardrey’s CPIC, Canadian Police Information Centre, and NICHE, Halton Regional Police Service Records Management System queries of A. A. He queried her on CPIC five times between January 21, 2020 and January 14, 2021. He queried her name eleven times on NICHE in 2021 using the Fast-Find feature and viewing her subject profile. He was involved as an officer on only two of these occurrences.

On September 10, 2021, he queried her using the “Fast-Find” feature on NICHE, and viewed her subject profile. These queries were conducted at 12:23 a.m. and 12:24 a.m., shortly after his conversation with her on the night of September 9, 2021. It is admitted that the majority of his queries of her were unauthorized and prohibited as they were not conducted in the course of any bona fide police investigation. J.M. read her victim impact statement to the court and the written statement was made an Exhibit. It contains six single-spaced pages of comments by her. Some of these comments relate directly to what Mr.

Ardrey did and to the impact that this offence had on her. Others do not do this, although some of these comments do provide context for the others. I was provided with cases pointing out that s. 722(8) of the Criminal Code provides that, The court shall take into account the portions of the statement it considers relevant and disregard any other portion. Both counsel agreed that I should do that here. I agreed. I have taken the following from the victim impact statement: J.M. was a vulnerable person who had experienced significant trauma in her life before she met Mr. Ardrey.

He met her in his capacity as a police officer and, as a result, became aware of her vulnerabilities and the trauma she had suffered. While he did not cause her depression or her PTSD, his actions certainly exacerbated things. I am certainly satisfied that the offence here had a significant impact on J.M. considering her age and other personal circumstances, including her health. With respect to the background of Mr. Ardrey, I was provided with a sentencing brief which contained a

summary of his life history, 12 reference letters, two medical letters and seven performance appraisals. From these, I learned that he is 55 years of age with 20 years of service. As a uniform police officer with the Halton Regional Police Service for 15 years, and 5 years prior service at the Brantford Police Service. His early years in Northern Ireland were difficult ones for him and his family. At 16 years of age he finished high school achieving grade 12 and immediately went to work on fishing trawlers.

He worked in the Irish Sea for the next two years, during which time the British Navy would board the ship and he was held at gun point, along with the rest of the crew while they searched for weapons and explosives. During his life in Northern Ireland he was exposed daily to a great deal of violence, bombings, abductions and murder, this being the norm in the world he had grown up in. His older brother became a police officer with the Royal Ulster Constabulary which placed the entire family under constant threat. Mr.

Ardrey found himself the victim of violence on a number of occasions, having been held at gun point in two instances, for example narrowly escaping being shot due to a gun misfiring. As a result, at 18 years of age he decided to move to Canada where he struggled for a long time and had difficulty finding work due to his Irish accent and the stigma associated to the terrorism in Northern Ireland. He eventually began working in construction which led to an apprenticeship with the carpenter’s union. His family eventually moved to Canada too where he supported them financially until he married.

While in Canada he trained in martial arts, eventually achieving Master level. He also volunteered to teach adults and youth. He became a correctional officer in 1999, subsequently working at the Hamilton Wentworth Detention Centre. This enabled him to realize his dream and transition into becoming a police officer. In 2002, he began his policing career with the Brantford Police Service where he served for approximately five years during which he received a number of awards. In 2007, he transferred to the Halton Regional Police Service due to family reasons.

Approximately six months after transferring to Halton, his son was attacked and suffered a brain injury which almost took his life. Since then, Mr. Ardrey has been dealing with the affects of his son’s brain injury. As a result of what happened to their son, Mrs. Ardrey suffered a nervous breakdown, ultimately suffering from gambling addiction issues later on. In 2012, she was diagnosed with a brain aneurysm which grew exponentially and required surgery. She subsequently underwent two surgeries at which time doctors discovered that she had further complications which also required surgery. In 2014, Mr.

Ardrey’s mother and brother-in-law passed away suddenly which further exacerbated his wife’s emotional state. In 2015, she underwent surgery for the further complications and during that surgery the doctor embolized the wrong artery causing her to suffer a triple stroke, leaving her paralyzed on her right side. It also left her with several other stroke-related health issues. She spent the next six months in hospital trying to recover, however she remains confined to a wheelchair to this day. After she was discharged from hospital, Mr. Ardrey became her primary caregiver.

Her medical condition is worsening and she is in constant pain. They have a personal support worker but the hours for this are capped and as a result, Mr. Ardrey has been her primary caregiver since 2015. He was her only caregiver for an entire year prior to the offence. In 2015, his father was diagnosed with brain cancer and passed away within two months of this diagnosis. In 2018, Mr. Ardrey began to have health issues of his own and was subsequently diagnosed with a blocked artery to his heart.

He underwent surgery at which time doctors discovered an issue with his blood, which led to a diagnosis of a rare blood cancer. At this time, there is no cure for that type of cancer, however through the correct treatment it can be controlled. I was told that Mr. Ardrey was suspended commencing on the date of the offence, on September 9, 2021. He was reinstated one year later on September 9, 2022. I was not given any further details with respect to this suspension. He is presently on sick leave from Halton Regional Police Service. The medical evidence I was given shows that Mr.

Ardrey has been under the care of Doctor Jane Storrie since October 12, 2021, seeing her on a bi-weekly basis. He received cognitive behaviour psychological treatment for symptoms of depression and anxiety, secondary distress arising from this matter, since his suspension from work and coping with his significant responsibilities as the primary caregiver for his disabled wife. Dr. Storrie notes that she also saw him on several occasions in 2017 at the Halton Police Services Occupational Wellness Unit, where she served in a triage role as the clinical psychologist.

These appointments were used to coordinate supports for his wife, including homecare, assistive devices and respite services. She notes that he is an active and cooperative participant in treatment and is motivated to improve his psycho-emotional status. He is a devoted caregiver to his wife, despite the significant demands this places upon him as a full time police officer. Both at home and at work, he typically gives his best efforts and puts the needs of others before his own. He has also been seeing Doctor Lisa Keith, Psychologist, for treatment and intends to continue doing so.

With respect to the character letters, I note that five authors are people with no police background who consider Mr. Ardrey to be a friend. Eight authors are long-time members of the Halton Regional Police Service. Some of them are now retired. Most of them describe Mr. Ardrey as a friend as well as a colleague. All of the letters describe him as a hardworking and proactive police officer, as well as a good friend. They speak of his devotion to his wife, son and grandson.

They note that he did not let very stressful issues in his personal life affect his work or impact his duties, in either his personal or private life. All of his performance appraisals from the Halton Regional Police Service were very positive. Counsel for Mr. Ardrey argued that he would not be able to perform the community service hours suggested by Crown counsel because of his medical condition and his responsibilities for his wife. Justice Doherty of the Ontario Court of Appeal aptly described my task here when he began the judgment in R. v.

Hamilton, by stating, The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is a highly individualized exercise that goes beyond a purely mathematical calculation. Deterrence, both general and specific, and denunciation are clearly important principles of sentence in this case, but I must not lose sight of the other principles. I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr.

Ardrey, and yet, at the same time, one that is responsive to his unique circumstances. I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence. I will first address the aggravating factors that are present here. I will then address other aggravating factors that are not present. I will address factors that are both aggravating and mitigating. I will then address the mitigating factors. Nothing should be read into the order in which I have approached these various factors. The aggravating factors can be found in the offence itself.

When he became a police constable, Mr. Ardrey took an oath or affirmed that he would serve the people of this community in an honest and upright manner. He did that for many years but then he breached the trust that was placed in him. He used police data banks to obtain information about J.M. In order to do this, he took advantage of the trust placed in him as a police officer to have access to those data banks. He did this more than a dozen times between January 21, 2020 and January 14, 2021. He did it another time in September 2021. The impact of his actions is significant.

I have already discussed the impact they had on J.M.’s emotional state. They also exacerbated her low opinion of police in general and her unwillingness to trust them in the future. It is logical to presume that other people might also be reluctant to trust police officers with their personal information if they believe that other police officers might access that information for their own personal purposes. So Mr. Ardrey brought into question the integrity of the entire police information system. This was a very serious crime.

Having said that, and with no intention of in any way minimizing it, I must expressly state what he did not do. He did not share the information with anyone else. There is in fact no information before me as to what use, if any, he did make of the information obtained by him. That then brings me to certain factors that are both aggravating and mitigating.

He had no prior criminal record. An offender’s prior criminal record or the absence thereof is always a factor entitled to some weight in a sentencing context. He was a trusted and respected member of the police service and the community at large. This would usually be a mitigating factor when determining an appropriate sentence. In this case however, I note that the same things can be said about virtually everyone who is charged with a breach of trust offence. It is only trusted and respected people who are put in a position where they are able to breach that trust.

Police officers should be held to a higher standard than other people. They are aware of the consequences of offending. On the other hand, they are the people with the most to lose if they are caught. The loss of reputation alone is significant for these people. It certainly has been for Mr. Ardrey. On the other hand, again, they are the people who can best be deterred by a significant sentence. I also note that in the case of police officers, they are amongst the people with the resources to rehabilitate themselves.

They often have access to employee assistance programs that many others might not be able to afford or even get into. That brings me to the mitigating factors that are present here. Mr. Ardrey pled guilty. I take that to be an expression of remorse and an admission of responsibility. Most importantly however, he made it unnecessary for J.M. to have to testify in a public courtroom. He has recognized issues that face him and he has taken steps to address these issues. There have been collateral consequences for Mr. Ardrey. He has suffered public disgrace.

This case has attracted significant local media coverage; all of it negative. Many friends and colleagues have stood by him, but many have not. I have been told that it is unlikely that he will be fired from his job as a police officer. On the other hand, it is equally unlikely that his career will proceed on the same trajectory that it was on previously. Such collateral consequences are a legitimate factor to be considered when determining an appropriate sentence, although there are, of course, limits on how far this may be taken.

The Ontario Court of Appeal stated that the fact that a person may suffer professional consequences cannot justify the imposition of a sentence that is outside of the appropriate range. I also note that Mr. Ardrey is the primary caregiver for his wife and this too is a factor to be considered when determining an appropriate sentence. In this case, after considering all of the above factors, while I am satisfied that a conditional discharge would be in Mr. Ardrey’s interests, I am not satisfied that a discharge would not be contrary to the public interest.

This was an offence that was repeated on a number of occasions over an extended period of time. It had a profound impact on J.M. It could also have a significant impact on the public at large and the degree to which they will trust police with their personal information in the future. The message from this court needs to be that such offences are rare and that if and when they do occur they will result in serious consequences. I am satisfied that this calls for the entering of a conviction.

I am also satisfied that the entering of a conviction is sufficient to satisfy the principles of denunciation and deterrence here. Accordingly, I will not be making a community service order. Mr. Ardrey, I am sentencing you as follows; sentence is suspended, and you are placed on probation for one year.

The terms of the probation will require that you keep the peace and be of good behaviour, appear before the court when required to do so, notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation. There will be no reporting condition. You will not contact or communicate in any way with J.M. You will not attend within 20 meters of any place where you know her to live, work, go to school, frequent or any place you know her to be.

I will give you four months to pay the victim fine surcharge. I will endorse all other charges as being withdrawn at the request of the Crown. ... MATTER COMPLETED ... *********** FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))Evidence Act I, Janice Young , certify that this document is a true and accurate transcript of the recording of R. v. ARDREY, David in the Ontario Court of Justice held at Milton, Ontario taken from Recording: 1211_15_20221006_093105__6_HARRISDAV.dcr, and certified in Form 1. October 24, 2022 Date Signature of Authorized Person