R. v. Whitney Date:, 2015 BCPC 27

Citation: R. v. Whitney Date: 20150223 2015 BCPC 0027 File No: 59088-C-2 Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KENRICK VERNON WHITNEY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE RIDEOUT Counsel for the Crown: M. Dattilo Counsel for the Defendant: M. Richards Place of Hearing: Richmond , B.C. Date of Hearing: January 13, 2015 Date of Judgment: February 23, 2015

INTRODUCTION: [ 1 ] Kenrick Vernon Whitney (“Whitney”), has entered a guilty plea to a charge that on or about May 30, 2013 at Richmond, British Columbia, he did, in connection with his duties as a member of the Royal Canadian Mounted Police (“RCMP”), commit a breach of trust by stealing money contrary to s. 122 of the Criminal Code of Canada (“ the Code” ). [ 2 ] Whitney must now be sentenced for his criminal conduct.

DETAILED BACKGROUND [ 3 ] An Agreed Statement of Facts was filed setting out the circumstances which led to the breach of trust by Whitney. [ 4 ] In November 1997, Whitney swore an Oath of Office as a constable in the RCMP.

The oath of office taken by Whitney is set out in s. 14 of the RCMP Act and reads as follows: “I solemnly swear (or affirm) that I will faithfully, diligently and impartially execute and perform the duties required of me as a member of the Royal Canadian Mounted Police, and will well and truly obey and perform all lawful orders and instructions that I receive as such, without fear, favour or affection of or towards any person. (So help me God).” [ 5 ] The RCMP Anti-Corruption Unit (“ACU”) commenced an investigation of Whitney in December 2011 after receiving information from an informant that Whitney was in possession of cocaine in early July 2011. [ 6 ] In July 2011, Whitney was assigned to the Vancouver Federal Drug

Section as an exhibit person in Project E-Polis in which a large quantity of cocaine had been seized. ACU investigators suspected Whitney may have been in possession of cocaine in July 2011 by misappropriating some of the cocaine seized in Project E-Polis. [ 7 ] It was ultimately determined by the ACU investigators that there was no evidence to establish that Whitney ever misappropriated any cocaine from Project E-Polis.

Furthermore, ACU investigators were unable to establish that there was any evidence that Whitney was ever in possession of cocaine in July 2011. [ 8 ] However, it was the ACU investigation into the suspected cocaine connection to Whitney that led to Whitney’s breach of trust as an RCMP member.

ACU investigators decided to present Whitney with two scenarios in an undercover police operation for the purpose of determining Whitney’s integrity and ability to conduct lawful and ethical investigations involving illicit drugs and exhibits. [ 9 ] It was the second scenario that led to Whitney’s breach of trust on May 30, 2013. The admissions of fact set out the unfolding of scenario two as follows: “9. The second scenario occurred on May 30, 2013. Before, during and for a period of time after the scenario, Whitney was under constant police surveillance. 10.

At 9:43 am, an undercover police officer posing as a taxi driver, parked his “taxi” behind Whitney’s marked police car on Ferguson Way at the Vancouver International Airport. 11. The undercover officer told Whitney he had picked up a male in North Vancouver. The male directed the undercover officer to various locations and to stop while the male got out for a few minutes and then returned to the taxi. The male was using a couple of telephones. They eventually made their way to Richmond. The male got belligerent and fled the taxi without paying the $91 fare. 12.

The undercover officer told Whitney that the male might have left something in the rear seat area of the taxi. Whitney went to the taxi, observed and then retrieved a leather satchel that the ACU investors planted in the vehicle. 13. Inside the satchel the investigators placed a number of items including $850 in marked Canadian currency and a canister of bear spray. 14. Whitney seized the satchel. 15. At 10:25 am, a few minutes after the undercover scenario ended, the surveillance team watched as Whitney drove his marked police vehicle to Iona Beach Park.

He was alone in his vehicle and no other police vehicles were at the parking lot. 16. In his Prime Report [“Police Records Information Management Environment”] that he wrote at 10:40 am on May 30, 2013, Whitney indicated that the satchel contained, among other things, “cash”. He did not indicate the amount. 17. At 12:49 pm, Whitney delivered the satchel to a Forensic Identification Officer, Corporal Baltzer, with a request that Cpl. Baltzer analyze the bear spray canister for fingerprints. At this point the satchel did not contain any money.

Whitney did not secure the money in either the temporary or permanent exhibit rooms. 18. After Whitney left the Richmond RCMP Detachment, the ACU investigators arrived at the Detachment at 1:20 pm. They examined the satchel. It did not contain any money. That afternoon, the investigators also determined that Whitney had not secured the money in any of the available exhibit facilities, including his temporary exhibit locker. 19. On June 1, 2013 between midnight and 9:45 am, Whitney amended his Prime report of the incident and indicated that he

had seized “$200 cash”. 20. On June 9, 2013, Whitney retrieved the satchel from Cpl. Baltzer and then lodged the items, including two $100 Canadian marked bills into his temporary Exhibit Locker. Whitney did not return the remaining $650 consisting of thirteen marked Canadian $50 bills. 21. On June 11, 2013, Inspector Blachford asked Whitney to come to the Richmond Detachment where the ACU Investigators arrested him for theft and breach of trust. 22. On or about June 12, 2013, the RCMP suspended Whitney with pay. The RCMP suspended him without pay on February 5, 2014. 23.

In August 2014, Whitney resigned from the RCMP.” PERSONAL CIRCUMSTANCES OF WHITNEY [ 10 ] Whitney was born in Montréal in July 1965. He is now 49 years old. Whitney is the father of a son and a daughter. His daughter was born in 1994 and his son was born in 2007. The daughter currently lives in Alberta. The son is residing in the Lower Mainland and Whitney sees his son approximately once per week. [ 11 ] Whitney joined the RCMP in 1997. He was first stationed in Kelowna before joining the Vancouver Drug Squad

section of the RCMP in 2001. In 2011, Whitney was transferred to the Richmond detachment. He was eventually transferred to the Vancouver International Airport RCMP detachment, where he was stationed in May 2013. [ 12 ] On June 11, 2013, Whitney was arrested for the offence of breach of trust. On June 12, 2013, he was suspended with pay until February 5, 2014, when he was then suspended without pay. In August 2014, Whitney resigned from the RCMP. [ 13 ] With his resignation from the RCMP, the financial loss to Whitney has been described as “tremendous”.

The calculated loss factoring in income and lost pension is approximately $2 million. [ 14 ] Since his suspension, Whitney decided to repair the damage he caused to society as a result of his breach of trust by opening a personal training business. His personal training business is one of three designated training centres in the Lower Mainland for the “Training for Warriors” program. [ 15 ] The Training for Warriors program offers troubled youth, men and women the opportunity to promote their self-worth through fitness.

The program is primarily based out of the United States, and with his certification for this program, he will be required to travel to the United States on occasion for training purposes. [ 16 ] The impact of Whitney’s personal training business, and the Training for Warriors program, on his rehabilitation was expressed by Whitney in his apology letter, which in part says: “After some counselling, I realized that I could continue to change people’s lives and contribute to the community. I used my passion for fitness and opened a small warehouse training facility.

Since December 2013, I have successfully changed the lives of approximately 25 people, men, women, young and old, mentally and physically. I have found my new purpose in life and I do the best I can.” [ 17 ] Whitney was of the opinion that in the months leading up to his breach of trust that he was experiencing periods of sadness. Whitney was also of the opinion that there were other stressors in play relating to both his work and personal life at the time of the breach of trust. Whitney described feeling “harassed, belittled and treated adversely” by a superior officer.

Whitney described experiencing personal problems in his relationship with his son’s mother and his girlfriend. Unable to effectively deal with these stressors, Whitney says that he fell into a depressive state. [ 18 ] Following his breach of trust, Whitney sought medical assistance for his depression. One of his treating doctors referred Whitney to Dr. Stephen Schertzer for a psychiatric assessment. A report was prepared by Dr. Schertzer dated February 16, 2014 for the referring doctor. This report formed part of the materials filed by Whitney. [ 19 ] It was noted by Dr.

Schertzer that the information provided by Whitney was “based on his self-report and may therefore not be free of bias.” In relation to Whitney’s Mental Status Examination, Dr. Schertzer provided the following opinion which in part notes: “… Thought form was within normal limits. Thought content was notable for his marked preoccupation with the unfortunate series of events that had befallen him. He did not have typical depressive constructs based on self-deprecation. He seemed somewhat embittered and angry towards his superiors. He had no evidence of psychotic thinking.

His insight was relatively good and his judgments seem to be good and completely at odds with whatever he did to merit the charges that he is now facing.” [ 20 ] In relation to Whitney’s Diagnostic Impression, Dr. Schertzer provided the following opinion which in part notes: “Kenrick Whitney is a 48-year-old RCMP officer who by his account has been subjected to grossly unfair treatment in the course of his work. He describes how being subjected to this treatment led him to feel anger and at times to behave irrationally. I gather that when you

made this referral it was immediately in the aftermath of charges being brought against him and that for a brief time he was having suicidal thinking. He has quite clearly moved on from this. He has been questioning himself over and over as to why he did whatever it was he did (which he would not disclose during the course of the interview )…” [ 21 ] Whitney continues to take prescribed medication for depression and anxiety. He also was engaged in counselling on a one-to- one basis for a period of time.

He has since ceased counselling, though is open to receiving additional counseling as part of his probation order. [ 22 ] Whitney does not have a criminal record. However, Whitney does have a court history. In October 2003, he was sentenced to a six-month conditional discharge for an assault that occurred in November 2002 arising out of a dispute over a parking spot when Whitney was off duty, though he was wearing an RCMP issued jacket at the time of the assault. POSITION OF THE PARTIES (

i) Position of the Crown [ 23 ] The Crown takes the position that the imposition of a suspended sentence would meet the principles of sentencing contained in

section 718 through

section 718.2 of the Code . The Crown is opposed to the imposition of a conditional discharge, submitting that a discharge would not be in the public interest. [ 24 ] The Crown submits that a proportionate sentence can only be determined by balancing the aggravating and mitigating circumstances in this case. [ 25 ] The Crown submits that a breach of trust is a deemed aggravating feature by operation of s. 718.2 (a)(iii) of the Code which reads as follows: “718.2 A court that imposes a sentence shall also take into consideration 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,”. [ 26 ] The Crown submits that Whitney’s breach of trust would have “ an immediate and detrimental impact on the public’s perception of the [justice] system.

A right minded citizen might very well wonder how true justice can be dispensed when its officials breach the very laws that they are sworn to uphold .” [ 27 ] The Crown also submits that the case is aggravated by the fact that Whitney’s conduct was a serious and significant deviation from conduct expected of police officers. The Crown submits that on this point, there is a need for police compliance with the Rule of Law. [ 28 ] The Crown submits that the case is aggravated by the inference that apparently Whitney believed his conduct would go undetected.

However, the Crown concedes this factor is somewhat diminished by the fact that Whitney safeguarded most of the marked currency bills planted by the ACU investigators. [ 29 ] The Crown submits that Whitney must have known, as a police officer, of the immediate and potential consequences resulting from his breach of trust. [ 30 ] The Crown submits that while Whitney does not have a criminal record, the fact that he received a conditional discharge in the past must have, or should have been something running through his mind at the time he took the money from the satchel. [ 31 ] The Crown submits that while this was a crime of opportunity, this does not reduce the severity of his conduct.

That conduct included misinformation that Whitney inputted into PRIME respecting the amount of cash seized from the satchel. [ 32 ] The Crown submits that the guilty plea is a significant mitigating factor. [ 33 ] The Crown submits that Whitney’s conduct did not derail any ongoing prosecution, nor did Whitney profit from his criminal behaviour. [ 34 ] The Crown submits that while Whitney’s resignation was probably inevitable, it should still be factored as a mitigating circumstance. [ 35 ] The Crown submits that in further mitigation, Whitney has suffered from the stigma of public scrutiny arising from his offending behaviour. [ 36 ] The Crown submits that it is mitigating that Whitney’s mental health was the likely cause of his criminal behaviour.

[ 37 ] The Crown submits that the primary sentencing principles in cases of breach of trust by a police officer are denunciation and deterrence. In support of that position, the Crown provided a number of cases (Appendix

A) that demonstrate that police officers who commit a breach of trust can, at the low end, receive discharges, and at the high end, significant jail time.

Again, each case is dependent on the circumstances of the offence and the circumstances of the offender. [ 38 ] The Crown submits that Whitney should also be placed on probation for a period of 18 months with some relatively standard conditions, but with the added conditions that he take counselling as directed by his probation officer and that he perform a substantial number of community work service hours. (ii) Position of Whitney [ 39 ] Whitney submits that a conditional discharge is appropriate in all of the circumstances. [ 40 ] In relation to the aggravating feature that Whitney was in a position of trust or authority, Whitney submits that the court ought not to rely on S. 718.2 (a)(iii) of the Code as a deemed aggravating factor where the very offence that Whitney has pled guilty to was the breach of trust. [ 41 ] Whitney submits that the aggravating factor of being in a position of trust or authority is built into the very offence itself.

Whitney submits that s. 718.2 (a)(iii) of the Code should be “ reserved for those offences where the accused was in a position of trust, but was not the actual offence for which he was convicted eg.

Fraud or theft .” [ 42 ] Whitney submits that the mitigating factors are significant, including: Whitney entered a guilty plea and forfeited his right to a trial; his remorse; his loss of employment and the loss of significant income; loss of friends and family; depression; Whitney has received counseling and medical intervention to assist with his rehabilitation; and, Whitney made full restitution of the $650, including a return of 10 of the original 13 bills planted by the ACU investigators. [ 43 ] Whitney submits that there are other factors which the court should take into account, including: greed was not a factor; the public stigma arising from the charge and the attendant publicity; significant loss of reputation from his peers, family, and friends; he has not been indemnified for his legal fees; and, there is no true “victim” resulting from his breach of trust. [ 44 ] Whitney submits that proportionality is a key principle in determining a fit and proper sentence for his offending behaviour.

Whitney submits that he has been specifically deterred from committing any further offences.

In relation to general deterrence, Whitney submits that it should be given less importance in light of his mental illness (depression) at the time of his breach of trust. [ 45 ] In the alternative, Whitney submits that if the court finds that denunciation and deterrence ought to be the principal factors in sentencing him, that a properly crafted conditional discharge can still satisfy those principles without offending the public interest component of the discharge provisions contained in the Code . [ 46 ] Whitney submits that rehabilitation ought to be afforded the most weight in determining a fit and proper sentence.

In making this submission, Whitney submits that a conditional discharge will allow him “ to continue forward in his life in a positive manner, despite the difficulties caused as a result of this offence.

It will also provide him with the counselling he may need to become fully rehabilitated and with the support he needs to heal. ” [ 47 ] Whitney submits that it would be in his best interest to be granted a conditional discharge, as it would permit him to travel to the United States to pursue his personal training business, and permit him to travel to the United States with his children. [ 48 ] Whitney submits that while he was granted a conditional discharge in 2003, that factor alone should not be an impediment to a conditional discharge in the particular circumstances of this case. [ 49 ] Whitney submits that it would not be contrary to the public interest “ to grant a discharge to someone who suffered from depression at the time of the offence.

The principles of deterrence and denunciation have been satisfied by the court process. It is not necessary to saddle Whitney with a criminal record in order to deter him or others from committing like offences .” [ 50 ] Whitney provided the court with cases (Appendix

B) in which peace officers were granted conditional discharges after committing a criminal offence in situations where they suffered from mental health issues at the time of the offending behaviour. Whitney submits that his mental health issues existent in May 2013 should weigh heavily in his favour in supporting the granting of a conditional discharge. LEGAL FRAMEWORK [ 51 ] A breach of trust by a public officer is defined in s.122 and reads as follows: “122.

Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.” [ 52 ] It is noteworthy that this

section specifically imposes a broader liability upon public officials than that which would apply to private individuals who were involved in the same type of activities. [ 53 ] The sentencing principles relevant in this case are s. 718 , s. 718.1 and s. 718.2 of the Code which read as follows: “Purpose

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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; (

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 and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour,religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

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, withparticular attention to the circumstances of aboriginal offenders.” [54] The deemed aggravating factors as contained in s. 718.2(

a) are not meant to be exhaustive. Other aggravating factors asdeveloped by the case law will still apply. [55] In carrying out the objectives of s. 718 of the Code, a court is required to ensure that a sentence is ultimately proportionate byoperation of s. 718.1 of the Code. In achieving a proportionate sentence, s. 718.2 requires that a court take into account the relevantaggravating and mitigating circumstances. In this assessment, the court must also take into account the need to avoid unjustified disparityand to apply the principle of restraint. [56] The power to grant an absolute or conditional discharge is found in s. 730(1) of the Code, which reads as follows: “730.

(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for whicha minimum 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 subsection 731(2).” [57] The Court of Appeal in R. v.

Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 at pp. 454 - 455 establishedeight principles that should guide a court in determining whether or not a discharge is appropriate in any given case as follows:

“(1)The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or theoffence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it isnot necessary to enter a conviction against him in order to deter him from future offences or [*455] to rehabilitate him, and that theentry of a conviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence.

(8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in theapplication of the discharge provisions. This lack will be more apparent than real and will stem from the differences in thecircumstances of cases. [58] In considering whether or not a discharge should be granted, a court may consider whether or not an accused has been granted adischarge on a previous occasion (R. v. Tan (1974), (BC CA), 22 C.C.C. (2d)184 (B.C.C.A.) considered R. v. Small,2001 BCCA 91 at para. 11). ANALYSIS AND DISPOSITION (

i) Aggravating Circumstances [59] It is a significant aggravating factor that Whitney’s breach of trust took place while he was on duty as a police officer with theRCMP. [60] It is an aggravating factor that 20 minutes after Whitney had seized the satchel containing the $850, he entered into his PRIMEReport “cash” without indicating the amount of cash that he had seized.

On June 1, 2012, Whitney again accessed PRIME to alter hisreport of the incident involving the $850 by indicating he had seized “$200 cash”. [61] PRIME is an electronic records management system maintained by PRIME Corporation which contains police files andinvestigation related information. PRIME allows police agencies also using PRIME in the Province of British Columbia to shareinformation. It is vital that police officers who have access to PRIME utilize this resource in a proper manner. Whitney’s access ofPRIME on June 1, 2012 to alter his initial PRIME Report was improper.

His improper conduct relating to PRIME is an aggravatingfactor. [62] It is an aggravating factor that Whitney’s actions by altering his PRIME Report would, by inference, establish that he believedthat his conduct in misappropriating the money would be undetected. [63] It is an aggravating factor that Whitney’s conduct was both a serious and significant deviation from conduct expected of policeofficers. [64] It is an aggravating factor that, while Whitney does not have a criminal record, one would expect that he would have been, orshould have been, aware at the time he misappropriated the money, of his potential for personal legal risk, as he had received aconditional discharge in 2003. (ii) Mitigating Circumstances [65] It is a significant mitigating factor that Whitney entered a guilty plea to the breach of trust offence.

The guilty plea establishesthe acceptance of responsibility by Whitney. [66] It is a mitigating factor that Whitney has resigned from the RCMP. This loss of employment has resulted in Whitney suffering asignificant income loss in relation to both salary and pension. [67] It is a mitigating factor that Whitney has made full restitution to the RCMP for his breach of trust. [68] It is a mitigating factor that Whitney has been subjected to a significant degree of stigma arising from publicity relating to hisbreach of trust. He has lost the support of friends and family.

[69] It is a mitigating factor that Whitney, in the face of the hurdles arising from his breach of trust, has established his personaltraining business and he is only one of a few fitness trainers to be certified for the Training for Warriors program. [70] It is a mitigating factor that Whitney was likely suffering from a depressive state at the time that he committed his breach oftrust. (iii) Sentence to be Imposed [71] Police officers are not just ordinary people; rather, they are people holding special authority in which the public trust isparamount. The British Columbia Court of Appeal in R. v. Shaw, R. v.

Glass (1968), (BC CA), 66 W.W.R. 626 atpara. 5 informs on the approach to sentencing a police officer who has committed a criminal act as follows: “ … In the case of a police officer the sentences should be heavier. A police officer is in a position of trust and in a position where he can commit offences without arousing suspicion.” [72] In R. v.

Cusak (1978), (NS CA), 41 C.C.C. (2d) 289 at para. 14 (N.S.S.C.), the importance of the publictrust component and the unique knowledge police officers hold with respect to consequences of crime is addressed as follows: “[14] The commission of offences by police officers has been considered on numerous occasions by the courts, and the unanimousfinding has been that their sentence should be more severe than that of an ordinary person who commits the same crime because of theposition of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration.” [73] Whitney has argued that the court ought not to rely on s. 718.2(a)(iii) of the Code as a deemed aggravating factor where the veryoffence that Whitney has pled guilty to was the breach of trust. [74] In R. v.

Cook, 2010 ONSC 5016 , Hill, J. found the accused police officer guilty of serious drug offences as well as abreach of trust relating to the drug offences. The facts of the Cook case are distinguishable, but the decision is still useful in relation tothat Court’s finding that s. 718.2(a)(iii) of the Code was an applicable consideration in sentencing the accused. At para. 38 the Court hadthis to say: “[38] Quite apart from the police corruption offence in s. 122 of the Criminal Code, breach of a position of trust is a deemedaggravating factor in sentencing: s. 718.2(a)(iii) of the Code.

General deterrence and denunciation drive the sentencing process in abuseof trust prosecutions. In the absence of an exceptional mitigating factor (e.g., addiction, see R. v. Lensen, [1994] O.J. No. 359 (C.A.)(QL)), severe sentences are justified for police officer offenders to honour these sentencing principles.

Regard may be had to thesejudicial statements: • In my opinion the paramount consideration in this case is the protection of the public from offences of this sort being committedby persons who are given special authority by our law to deal with individual members of society, and to deter such persons from actingin breach of their trust. (R. v. Cusack, supra, at para. 13) (approved, R. v.

Feeney et al., supra, at para. 8) ... • If one unbundles the several principles that come into play in shaping a fit sentence for conduct by an on-duty police officeramounting to criminal breach of trust under s. 122, general deterrence and denunciation overshadow all others. Those principlescommand more than lip service; they must impact upon the sentencing process and help shape its outcome.” [75] In this case, Whitney’s breach of trust occurred when he was in a position of trust or authority. Considerable police resourceswere deployed in the investigation of Whitney. These resources are publicly funded.

More importantly, Whitney’s breach of trust wouldvictimize the public’s perception of the justice system. I agree with the position of the Crown in their submission that a “right mindedcitizen might very well wonder how true justice can be dispensed when its officials breach the very laws that they are sworn to uphold.” [76] Whitney has emphasized that his mental health issues at the time he committed the breach of trust would justify the impositionof a conditional discharge.

The materials provided to the court would certainly support a factual foundation that Whitney was likelysuffering from a depressive state of mind at the time he committed the breach of trust. [77] However, I am not persuaded that the materials establish that Whitney was suffering from a diagnosed mental illness. Dr.Schertzer’s report notes that his report was based on self-reporting by Whitney and that the report may not be free of bias.

[ 78 ] In addition, Dr. Schertzer did not note any psychotic thinking by Whitney and found that Whitney’s insight was “ relatively good and his judgments seem to be good and completely at odds with whatever he did to merit the charges that he is now facing .” [ 79 ] In relation to the Diagnostic Impression, I found it concerning that Dr. Schertzer noted in his report that Whitney “ has been questioning himself over and over as to why he did whatever he did (which he would not disclose during the course of the interview)”. [ 80 ] I would have expected that Whitney would have been forthcoming with Dr.

Schertzer about his depressive state being the underlying cause of his breach of trust, rather than questioning his personal motivation for committing the breach of trust. Certainly Whitney’s actions in relation to the misinformation inputted into his PRIME Report would support the inference that this judgment was not overborne by his perceived depressive state. [ 81 ] Whitney emphasized that the circumstances in R. v. Edmunds , 2012 NLCA 26 , are not dissimilar to his circumstances. In Edmunds , the Accused was a correctional officer and on duty when he misappropriated money from two inmates in the lockup.

In addition, property forms in relation to monetary belongings were altered by Edmunds. [ 82 ] Edmunds was charged with one count of breach of trust and two counts of theft under $5000. Upon the application of Edmunds, and with the support of a psychiatrist and the consent of the Crown, Edmunds’ case was transferred to the Mental Health Court (a Division of the Provincial Court).

The Mental Health Court is described as a specialized Court providing increased level of support, both medical and community-based, to accused persons. [ 83 ] Entry into the Mental Health Court requires a diagnosis of one or more of a group of specific mental illnesses and a nexus between the illnesses and the offence. [ 84 ] Edmunds pled guilty to the charges and was sentenced to a conditional discharge coupled with a 24-month period of probation. [ 85 ] The Crown appealed, arguing that a conditional discharge was not a fit sentence.

In dismissing the appeal, the Court of Appeal noted that the treating psychiatrist was of the opinion that Edmunds suffered from a “ major depressive disorder and acute stress disorder” .

The psychiatrist was also of the opinion that Edmunds’ offending behaviour was connected to his “mental illness”. [ 86 ] The Court of Appeal noted the specialized nature of the Mental Health Court and the benefit that the Mental Health Court provides to individuals ent ered into that Court program at paras. 39 through 41 as follows: “[39 The Provincial Court of Newfoundland and Labrador sets out in the Practice Note I have referred to (and also on its website) the purpose of the Mental Health Court.

This "Specialty Court" established in 2005, is a project of the Provincial Court, the Public Prosecutions Division of the Department of Justice, the Mental Health Project of the Newfoundland and Labrador Legal Aid Commission, Eastern Health, and Corrections and Community Services. As such, the project is a collaborative effort of all the agencies frequently involved when criminal charges and mental health issues intersect. [40] In this case, the involvement of the Mental Health Court is a success story. Mr. Edmunds has continued treatment and remains employed.

Imposition of a sentence resulting in a criminal record would have no positive benefit to society. The diversionary process worked. All the agencies which participated in setting up the Mental Health Court have realized the objective of their efforts. [41] In R. v. J.J. , 2004 NLCA 81 , 244 Nfld. & P.E.I.R. 24 Rowe J.A. of this Court spoke favourably about the potential for the specialized process involved with Sentencing Circles. In like manner, I am impressed with the specialized Mental Health Court process.

In appropriate circumstances, allowing diversion to such a "Specialty Court" has a lasting benefit to the community by recognizing the impact of mental illness and encouraging treatment and rehabilitation of a person who because of such illness has acted in an uncharacteristic manner.” [ 87 ] Whitney has entered his guilty plea in the regular division of the Provincial Court of British Columbia and not a specialized court.

In addition, the medical reports and clinical records filed by Whitney identify various stressors which were likely in existence in March of 2013, including sadness and a depressive state, but the medical reports and clinical records do not identify a specific mental illness as was the case in Edmunds . [ 88 ] In addition, Edmunds had no prior dealings with the criminal justice system, unlike Whitney. [ 89 ] Whitney has submitted that the imposition of a suspended sentence would impact his ability to travel to the United States for his personal training business or to take his son on a vacation to Disneyland.

Whitney submits that impact would be contrary to his interest and contrary to the public interest in light of the significant personal steps taken towards his rehabilitation and reformation. [ 90 ] It may well be that American authorities view a suspended sentence differently from a discharge, as a suspended sentence does result in the registration of a criminal record.

However, I was not provided with any information from American authorities to confirm that Whitney would be denied entry into the United States as a result of the registration of a criminal record. [ 91 ] In addition, I was not provided with any information from American authorities indicating that there were no alternate processes available to Whitney to seek entry into the United States by way of pre-clearance. [ 92 ] I conclude that Whitney’s offending behaviour in his commission of the breach of trust is serious.

This is particularly so as he was on duty at the time of the commission of the offence. [ 93 ] Whitney’s actions by his improper use of the PRIME system makes his conduct surrounding the breach of trust all the more egregious. A court should not look with leniency when a police officer accesses sensitive police investigation systems to either advance or to disguise his or her criminal activity.

[ 94 ] Additionally, Whitney’s prior dealings with the criminal justice system when he received a conditional discharge in 2003 for an assault weighs against the appropriateness of imposing another conditional discharge. [ 95 ] While I take into account Whitney’s depressive state of mind in March 2013, I do not find that his depressive state of mind sufficiently explains his conduct when he committed the breach of trust.

His criminal behaviour appears to be motivated by opportunity. [ 96 ] While the imposition of a conditional discharge may well be in the best interests of Whitney, I am not satisfied that the imposition of a conditional discharge would be in the public interest. The message must be clearly sent to police officers that when they commit a breach of trust while on duty, that any sentence that is imposed requires that deterrence be paramount to preserve the public faith in the integrity of the justice system. [ 97 ] Accordingly, I impose a suspended sentence coupled with a probationary period of 12 months.

The following conditions of probation shall apply: (

a) You shall keep the peace and be of good behaviour; (

b) You shall appear before the court when required to do so by the court; (

c) You shall report in person within 24 hours to a probation officer at the probation office situated at #210 - 7577 Elmbridge Way in Richmond, British Columbia, and thereafter as when and where directed for the purpose of facilitating your participation in and completion of community work service hours; (

d) You shall provide your address or reside where directed by your probation officer and not change your residential address without the prior written permission of your probation officer; (

e) Within the first 9 months of this order, at the direction of your probation officer, you shall participate in and successfully complete 55 hours of community work service to the satisfaction of your probation officer; (

f) At the direction of your probation officer, if he or she deems it to be appropriate for your rehabilitation, you shall take such counselling as may be directed, which may include psychiatric and/or psychological counselling. [ 98 ] The victim fine surcharge shall apply and I will hear from counsel in relation to time to pay the victim fine surcharge. _________________________ G. RIDEOUT, P.C.J.

APPENDIX A CROWN LIST OF AUTHORITIES 1. Sections 718 , 718.1 and 718.2 , Criminal Code of Canada , R.S.C. 1985, c. C-46 2. R. v. Cook , 2010 ONSC 5016 3. R. v. Edmunds , 2012 NLCA 26 4. R. v. Gray , 2000 CANLll 22830 (ON S.C.) 5. R. v. Greenhaigh , 2011 BCSC 411 ; aff’d 2012 BCCA 236 6. R. v. Hunt , [1978] B.C.J. No. 92 (C.A.)

7. R. v. Johnson, (BC CA), [1996] B.C.J. No. 2508 (C.A.) 8. R. v. LeBlanc, (2003) 2003 NBCA 75 , 180 C.C.C. (3d) 265 (N.B.C.A.) 9. R. v. Nasogaluak, 2010 SCC 6 10. R. v. Tan, [1974] B.C.J. No. 875 (C.A.) APPENDIX B DEFENCE LIST OF AUTHORITIES 1. R. v. Edmunds, 2012 NLCA 26 , 2012 N.L.C.A. 26 2. R. v. Fallofield, (1973) (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.)

3. R. v. Freedman, (1975) (ON CA), 25 C.C.C. (2d) 58 (Ont. C.A.) 4. R. v. Gray, (O.N.S.C.) 5. R. v. Klassen, 2011 BCPC 109 , 2011 B.C.P.C. 109 6. R. v. M. (C.A.), (1996) (SCC), 105 C.C.C. (3d) 327 (S.C.C.), excerpts 7. R. v. Martin, 2014 ABPC 282 , 2014 A.B.P.C. 282 8. R v. Tompkins, 2013 B.C.S.C. 2265