R. v. Geoffrey Adam Mantler Date:, 2013 BCPC 98

Citation: R. v. Geoffrey Adam Mantler Date: 20130502 2013 BCPC 0098 File No: 74754-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GEOFFREY ADAM MANTLER REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Crown: William Burrows Counsel for the Defendant: Neville McDougall Place of Hearing: Kelowna , B.C. Dates of Hearing: April 30 and May 2, 2013 Date of Judgment: May 2, 2013

INTRODUCTION [ 1 ] After several days of testimony and at the conclusion of the Crown’s case, Cst. Mantler pled guilty to assaulting and causing bodily harm to Mr. T. The offence occurred on January 7, 2011, while Cst. Mantler was on duty as a police officer in Kelowna B.C. During a high risk stop and arrest, Cst. Mantler kicked Mr. T in the head. [ 2 ] The Crown asks the court to suspend the passing of sentence and impose an 18 month probation order. The defence on the other hand, recommends that the Court discharge Cst. Mantler and place him on 18 months probation. FACTS [ 3 ] Cst.

Mantler is currently 30 years old. He was regarded by many as a rising star within the ranks of the Kelowna RCMP. Within a very short period of time he was selected for plainclothes detail in the property crime unit. [ 4 ] Mr. T, who is 54 years old, worked as a golf course superintendent at the Harvest Golf course until a motorcycle accident in August 2010. As a result of the accident, he sustained a very serious head injury. He spent 3-4 months in the hospital, was in a coma for part of that time and had to learn to speak again.

Following his release from hospital, he began his long road to recovery. [ 5 ] On the morning of January 7, 2011, Mr. T received registered mail from his former spouse, B.T. She was seeking arrears that had accumulated while Mr. T was confined to a hospital bed. This did not impress Mr. T. [ 6 ] After picking up the mail, he drove to the Harvest Golf Club. He took his shotgun because he planned to scare geese off the fairway like he had done prior to his injury. [ 7 ] When he arrived at the club house, he saw his former spouse but did not speak with her.

Instead he contacted his lawyer and then proceeded to the fairway with his gun and began shooting. [ 8 ] Given the context of the situation, his actions alarmed some of those at the golf course and police were contacted. When he was interviewed by police, Mr. T did not deny that his actions could possibly have been misinterpreted. He said his display at the golf course was quite stupid. [ 9 ] It was at this point that the calamity of errors began. Mr.

Burrows, on behalf of the Crown, described it best when he said it was like one snowflake after another eventually accumulating and causing an avalanche. [ 10 ] The person who made the 911 call was not the one who actually witnessed the events at the golf course and was a bit unclear as to the actual purpose of the call. [ 11 ] She told the call taker that Mr. T was an ex-employee and was shooting his gun. She also told the operator that Mr. T had a brain injury. [ 12 ] No one, including the call taker, bothered early on to ask the critical question what Mr.

T was actually shooting at. [ 13 ] Instead, dispatch sent out a Tone Alert. The Alert was broadcast across the air to everyone working that day, including those in the office. [ 14 ] Tone Alerts are rare. They are the highest priority. They are used when someone is in imminent danger of being harmed and/or as a panic alarm for police. [ 15 ] After Mr. T finished discharging some rounds, he trigger locked his shot gun, placed it on the floor behind the seats and began to drive to the courthouse.

His intention was to speak to the people at the Maintenance Enforcement Office regarding his arrears. [ 16 ] The caller updated police and told them that Mr. T had left the property and provided a description of the truck that he was in. [ 17 ] All of this information was then dispatched to the officers responding. [ 18 ] The dispatcher also advised police that Mr.

T owned two firearms. [ 19 ] Based on the information they were provided from dispatch, the officers responding justifiably believed that the person they were looking for had been engaged in an active shooting of people at the golf course. [ 20 ] As one officer pointed out, they were not told that he was shooting geese and at the time they could think of no other explanation for shots being fired at a golf course. [ 21 ] Sgt. Lane, an expert called by the Crown, was very critical of the information or lack thereof that was provided by the dispatch operator during this incident.

I am told that the operator, like all the officers responding to this call, was junior in service and disciplinary steps were taken internally. [ 22 ] Cst. Kyle Boffey described the situation well when he said:

“It sounded like a horror story of an ex-employee coming in and going to town. I thought it was an active shooter – like a shooter shooting people. This could be it absolutely it – it could be the big file in your career where your life is on the line – when I was receiving the information about the person being an ex employee, etc. – I thought there might a gun fight to solve this.” [ 23 ] Some of the officers described the adrenaline dump they experienced when they received the dispatch and were responding to it. [ 24 ] Sgt. Lane described this biological reaction in more detail.

He described when one is stimulated by fear, the body releases or dumps hormones directly into the blood stream. This often heightens the person’s state of arousal and produces predictable physical, emotional, perceptual and cognitive changes.

As he noted, the intense feelings of fear compel the body to act instinctively in one of four ways: fight, flight, freeze or faint. [ 25 ] Under this type of extreme stress, motor performance, visual perception and cognition begin to fail resulting in significant errors in perception, judgment and performance. [ 26 ] Persons engaged in law enforcement are trained to confront these symptoms through combat breathing, and tactical principles like time, distance and cover.

These principles give the officer an opportunity to think, plan, act and keep the arousal levels in check before directly engaging the subject. [ 27 ] When police learned that Mr. T had left the property, they soon realized that although he was no longer potentially engaged in shooting people, he was also no longer contained but mobile. [ 28 ] The officers also justifiably believed that he left the property because he was trying to avoid apprehension. [ 29 ] There was confusion as to where police were actually going. Cst.

Mantler witnessed some of his fellow officers pass him traveling in the opposite direction than he was going. [ 30 ] Mr. T was completely oblivious to the fact that the police were looking for him and that he was now the subject of an intense police manhunt. [ 31 ] Mr. T eventually drove past Cst. Mantler’s vehicle. The two made eye contact. Cst. Mantler realized that Mr. T knew that he was a police officer and that the element of surprise was gone. Cst. Mantler believed he had no option but to stop Mr. T as soon as possible. [ 32 ] He turned his vehicle and dropped in behind Mr. T. Mr.

T stopped immediately. [ 33 ] Given former police officer Grant Werely’s description of Cst. Mantler, it was apparent that Cst. Mantler was still in a heightened state of arousal. According to Mr. Werely, Cst. Mantler was having difficulty with the simple task of placing his vehicle into park. [ 34 ] Cst. Mantler’s next move was a critical error in judgment. [ 35 ] Since the shooting massacre at Columbine, police have been trained differently to deal with an active shooter. In the Columbine situation, police contained the building and waited for all their backup to arrive before entering.

They have learned from that experience that more people die when police sit and wait. They are now trained to immediately charge in and take the threat out as quickly as possible, even if it means risking officer safety. [ 36 ] Cst. Mantler genuinely believed that tactically he needed to do the same. Albeit not take out the threat but quickly gain control of it before it controlled him and either harmed him or innocent civilians. [ 37 ] Based on the information that Cst. Mantler had, his concerns were real. There was a city bus parked directly in front of Mr.

T, with the driver of the bus standing with an open door looking towards them and others from inside the bus taking pictures. There were also pedestrians within feet of the stop. [ 38 ] However, as Sgt. Lane pointed out, by getting out of his police vehicle and rushing the vehicle, Cst.

Mantler abandoned everything that he had been trained about Code 5 or high risk stops. [ 39 ] He failed to follow basic tactical principles that had been taught to him in recruit training and at the detachment level by former officer Skolinsky. [ 40 ] The tactical principles involve remaining within safety of the patrol vehicle, waiting for back-up to arrive, and then only when back up has arrived slowly directing the subject out of the vehicle and onto the ground with very concise commands. [ 41 ] Despite having his gun drawn when he approached the cab of the truck, by abandoning what he had been trained to do, Cst.

Mantler placed himself in a very vulnerable position which would have contributed to his already heightened level of anxiety. [ 42 ] Mr. T described Cst. Mantler as appearing scared with his hands shaking. Again, this description is consistent with someone in a heightened state of arousal. [ 43 ] Cst. Mantler did what he did because he thought he needed to treat the situation like an active shooter situation. He honestly believed that he was potentially dealing with a homicidal and/or suicidal subject who was even more unpredictable because of his brain injury.

[ 44 ] Cst. Mantler did say later that he believed that Mr. T had shot two people and had just been involved in a domestic. The Crown urged upon me to consider that Cst. Mantler was lying about this. I did not reach that conclusion. This case would make for a very interesting case study. Many of the witnesses in these proceedings engaged in some innocent reconstruction of what they observed. The reconstruction was completely at odds by what the video depicted. I am confident that Cst.

Mantler was not trying to intentionally mislead this court but mistaken given the passage of time and the information he had been provided after the incident occurred. [ 45 ] Regardless of what he believed, Sgt. Lane pointed out that Cst. Mantler’s thought that he needed to immediately apprehend Mr. T was flawed. Even despite the serious circumstances he should have followed his Code 5 training and he did not. This was not an active shooter situation, instead it had the potential to be one. There is a significant difference. [ 46 ] Cst.

Mantler’s heightened state of arousal and his lack of experience likely contributed to his error in judgment. Cst. Mantler had only 3½ years of experience policing and had never been involved in an actual Code 5 stop. [ 47 ] Furthermore, as Sgt. Lane pointed out, there was a gross absence of supervision on this call by more senior members. Despite being the highest type of priority call, perhaps Kelowna’s Columbine, the most senior officer to respond had less than 4 years of experience.

I am told there were several other senior supervisory officers available, yet none attended, nor got on the radio to provide direction. [ 48 ] The next in the series of mistakes made by Cst. Mantler occurred when he began giving commands to Mr. T. [ 49 ] Cst. Mantler had been trained to give short concise commands followed by do it now. Again, as Sgt. Lane pointed out, Cst. Mantler abandoned his training and gave unclear commands. [ 50 ] Cst. Mantler initially instructed Mr. T to get out of his truck. As Mr. T was doing so, Cst. Mantler believed he heard Mr. T say something that referenced the word kill. Cst.

Mantler though he may have said, “that bitch should have killed me”, but was uncertain. On the other hand, Mr. T categorically denied ever saying the word kill and only ever saying, “What did I do?” [ 51 ] When Mr. T got out of the truck, he told him to get down on the ground. Again, the command was vague. The more appropriate commands would have been get down on your right knee and do it now. Get down on your left knee and do it now.

Commands of this nature leave no room for misinterpretation or confusion which in turn can be misinterpreted as further threat cues. [ 52 ] Not only were the commands not concise and clear, they were being given overtop of the wailing of Cst. Mantler’s siren which would not have been helpful. [ 53 ] Mr. T did not have any idea what was happening and naturally responded with a confused or stunned expression. However, in Cst. Mantler’s eyes, this expression was perceived as a potential threat cue. [ 54 ] Cst. Mantler told Mr. T to get on the ground five times. In Cst.

Mantler’s mind, the commands were clear and specific and he could not understand why Mr. T was not complying more quickly. He questioned whether Mr. T’s slow responses were him calculating his next move or escape. [ 55 ] It was interesting listening to the different perceptions of the witnesses to this incident. Some thought that Mr. T. was reacting unusually slow to the commands of Cst. Mantler while others thought he was moving at an appropriate pace. [ 56 ] News reporter Kelly Hayes captured the assault on his camera.

The video was a critical piece of evidence in this trial. [ 57 ] On a side note, it was indeed a luxury to have a video showing part of these events. I understand that some of the larger police forces have embraced the technology and equipped their officers with portable video-microphones that clip to their chest. [ 58 ] I remain puzzled as to why the RCMP have resisted and not done the same. A video-microphone in this case would have been helpful in more clearly identifying what Cst. Mantler was seeing, hearing, and saying.

These types of devices have the ability to not only protect police but also people like Mr. T. [ 59 ] When one watches the video, it becomes clear that Mr. T was in fact moving at an appropriate pace and it was unreasonable for Cst. Mantler to conclude otherwise. [ 60 ] When the video is reviewed in slow motion, one can see Mr. T eventually getting to the ground on both knees. As he begins to put his hands towards the ground, one can see for a fraction of a second his hands moving back up and then returning back down again. [ 61 ] Cst. Mantler perceived this movement as a threat cue. He was concerned that Mr.

T might have a gun or weapon in his waistband or pocket. [ 62 ] Cst. Mantler reacts by recoiling, stepping forward and kicking Mr. T in the head. [ 63 ] The force was severe, some of the witnesses watching from a balcony were sickened by the sound. One of the witnesses described the sound like a watermelon hitting the pavement. [ 64 ] Sgt. Lane pointed out that if in fact Mr. T was a real threat, and the only option was subdue him, a kick would have been appropriate. He opined this would be especially so where the officer hands are occupied holding a handgun. [ 65 ] Mr. T was fragile and a vulnerable victim.

He had been out of hospital for just over a month and was very concerned about suffering any type of blow to his head. He avoided stairs and any possibility of slipping on a sidewalk. [ 66 ] The kick to the head left him with facial bruising, a cut to his face, concussive symptoms like severe headaches and it set back his recovery from his brain injury. He also now experiences more frequent panic attacks, especially when police are near.

[ 67 ] During and following the assault, none of the witnesses described Cst. Mantler at any point appearing angry. Kelly Hayes did not see anger in Cst. Mantler. He even spoke to Cst. Mantler within minutes of the incident and Cst. Mantler showed no signs of hostility or aggression. He cooperated with the reporter’s questions. [ 68 ] Mr. T did not have a weapon in his waistband or pocket. The only firearm police located was the trigger locked shotgun in the back seat of his truck. [ 69 ] By pleading guilty, Cst. Mantler accepts responsibility for his actions.

He acknowledges that his compounded errors in judgment created the situation that led him to react unlawfully by kicking Mr. T in the head. CROWN’S POSITION [ 70 ] I am told the Crown’s original position when it started this case was that a conditional sentence was warranted. After hearing the evidence, Mr. Burrows tempered that position and now recommends an 18 month suspended sentence. [ 71 ] This position is a courageous one for Mr. Burrows to be taking. I suspect that it is not a position that comes with the blessing of Mr. T, nor is it a position that many in the public will understand.

But it in my opinion it is the correct one and those members of the public who are informed will understand. DEFENCE POSITION [ 72 ] Mr. McDougall on behalf of his client does not dispute the length of probation suggested by the Crown, nor most of the terms, but argues that his client should be discharged conditionally. ANALYSIS Objectives of Sentencing [ 73 ] Because of the special and unique position that police officers hold in society, the primary objectives of sentencing that I must emphasize are denunciation and deterrence. [ 74 ] I am mindful of the fact that Cst.

Mantler has already paid a very significant price for this crime. He has been vilified in the media, the subject of ridicule and threats on the internet and has paid a significant price financially. Because of this, specific deterrence is a consideration but not a paramount consideration. [ 75 ] General deterrence, however, remains a primary objective. Principles of Sentencing [ 76 ] The primary principle of sentencing in all cases is the principle of proportionality.

That means the sentence must be proportionate to the gravity of the offence and the degree of responsibility or moral blameworthiness of the offender. [ 77 ] I must take into account certain factors which may increase or decrease the sentence because of aggravating or mitigating circumstances relating to the offence and the offender. [ 78 ] The sentence must also be similar to sentences imposed on similar offenders for similar offences in similar circumstances. [ 79 ] In balancing these considerations, I am guided by: Objective Seriousness of the Offence [ 80 ] This offence is punishable by up to 18 months in jail.

Aggravating Factors 1. Breach of trust [ 81 ] In R. v. Sweet , 2007 BCPC 240 at para 31 , Judge Weitzel summarizes this consideration well when he writes:

The public places a great deal of trust in police officers. Police officers are allowed to do things which citizens cannot do. They are allowed to carry weapons. They can enter private property and even in some circumstances break the law which other citizens cannot do. The public pays them and provides them with appropriate training. Not all citizens are suited to be police officers. Those with low levels of tolerance or high levels of frustration are hopefully weeded out early on.

He adds further: …the Canadian public expects a special manner of measured behavior and responses from these specially trained members who are thus placed in a special position of trust. If that trust is breached in a criminal way, then the consequences will be and should be more severe than for an ordinary citizen who commits the same crime, because of the special position of trust that the officer held at the time and because of that officer’s knowledge of the consequences which would flow from its perpetration. Police are authorized by law to use force.

They must exercise that right responsibly and when they fail to do so, they must be held accountable. 2. Vulnerable and fragile victim • Mr. T had previously sustained a serious brain injury and was still in the recovery phase when the assault occurred. • He was not a young man, and perhaps a bit older for his age given the pre-existing injuries. • He was on the ground on his hands and knees in a defenseless position. 3. Extreme force • The force was of a lethal kind. Mr. T was struck in the most vulnerable part of his body, his head. He could have been more seriously injured or even killed. Mr.

Burrows is correct that both Cst. Mantler and Mr. T are fortunate that Cst. Mantler is not facing a charge of manslaughter. 4. Impact on Mr. T • The crime has had a devastating impact on Mr. T. The kick to his head set back his recovery from his brain injury and has also taken toll on his mental well being. He has experienced increased panic attacks when police are near and other symptoms consistent with post-traumatic stress disorder, albeit there was no evidence that he has been diagnosed with the same. 5. Impact on others • The offence has impacted those close to Mr.

T, including his daughter and parents. • It has also had an impact on members of the public who have watched the video and been shocked by it. • Cst. Mantler’s actions also shamed the organization that he worked for. It has helped fuel a culture of distrust for police by some members of the public. [ 82 ] The Crown also raised concerns about the strategy of defence counsel in attacking and re-victimizing Mr. T. I thought the cross-examination was vigorous but I do not share the opinion that it was improper or designed to re-victimize Mr. T.

The conduct of the defence was not an aggravating factor, nor could it ever be an aggravating factor. Mitigating Factors

1. Guilty plea • In the case at hand, Cst. Mantler’s guilty plea occurred at the close of the Crown’s case. As such, it is not afforded the same weight if the plea had been entered at an earlier stage. A guilty plea at the earliest opportunity usually demonstrates a greater degree of remorse. • However, the lateness of the plea does not mean I should discount it altogether. • A guilty plea often provides better closure and validation to a complainant than a finding of guilt by a judge.

A guilty plea is a clear acknowledgment that the victim was telling the truth and was wronged. • I am also mindful of the fact that there was a significant shift in the Crown’s position on sentence after the evidence had been heard. • Furthermore, although it was unfortunate that the witnesses had to testify, hearing the evidence was important, both for the court and the public. • I am hopeful that we all now, including those responsible for reporting this to the community, have a clearer picture of what occurred on January 7, 2011. 2.

Remorse • Expressions of remorse are relevant to the assessment of the seriousness of the offence as well as the offender’s character and attitude. • Cst. Mantler apologized in open court before his counsel began his submissions. • His expression of remorse was not last minute. He tried to offer an apology sooner before this matter even came to trial, but not surprisingly, Mr. T was not in a position to hear it. • The apology was heartfelt. It was sincere and genuine. • There is no doubt in my mind that Cst. Mantler wishes that he could turn back the clock, not for his own benefit but so that Mr.

T would not have to suffer. 3. Absence of criminal record • The absence of a criminal record is important because it reinforces that Cst. Mantler is of good character and reputation.

4. Previous good character • I have read several letters which describe Cst. Mantler as a genuinely nice person, who cares about his family, the organization that he worked for and the people he dealt with on a daily basis. He was a dedicated member of the RCMP and dedicated to the community he served 5. Productive member of society • Cst. Mantler was and continues to be a productive member of society. 6. Good family support • Although Cst. Mantler may have lost the support of the organization that he so wanted to be part of, he still has the support of his family who can aid in his rehabilitation. 7.

Impact on mental health • At the time of this incident Cst. Mantler was dealing with and is still coming to terms with finding a young child murdered and stuffed in a back pack. It is difficult to imagine anyone recovering from something like this. Despite this unfortunate experience he continued to put in long hours policing. As Dr. Lea points out, he may have been already suffering post traumatic stress when the incident with Mr. T arose. • He has also suffered from depression, anxiety and panic attacks. • The effects to Cst. Mantler are eerily similar to those suffered by Mr.

T. • The fact that his mental health has suffered bears on any number of sentencing goals like individual and general deterrence. 8. Very low risk to reoffend • With the culmination of errors and what Cst. Mantler has been through as a result, I see him as a very low risk to re-offend. 9. Lack of experience • One of the reasons for the errors made by Cst. Mantler and his skewed perception of the events confronting him was his lack of experience. He was not a seasoned veteran officer who threw all his training to the wind and acted like some type of out of control cowboy.

• Experience always plays an important role in people’s perception and their exercise of judgment. 10. Post offence behavior • Cst. Mantler was pro-active in seeking out the assistance of a counselor and psychologist to deal with his situation. • He has not sat idle. He has sought out and obtained new employment. 11. Stigma and loss of reputation • The mere appearance in a public forum together with a finding of guilt has serious consequences – more so in the case of a first offender. • However this case is exceptional. • Cst. Mantler has been publically shamed and ridiculed on the internet.

I am told that he has been the subject of a Facebook page called “Geoff Mantler Should Be Fired”. In the current age of the internet, Cst. Mantler will never be yesterday’s news. Many of the negative postings will continue to haunt him forever. • The media attention has been intense with reporters camped outside his door. However, I must be careful in not placing too much emphasis on the amount of media attention that has been generated.

To do so, would be to set a different standard for those who are more prominent in our community. • He has been threatened and out of concern for his family’s safety, relocated to a location outside of Kelowna. • He has been ostracized by many in his organization. 12. Financial consequences • His actions have cost him financially. He has lost a significant amount of pay; his organization has not funded his defence; and he is now facing a civil lawsuit. 13. Resignation from the RCMP I am told that Cst.

Mantler has resigned his position with the RCM Police and will not be resuming active duty as a police officer with the force. Cst. Mantler’s dream of living his life as a Mountie has come to an unfortunate and disgraceful end.

14. Moral culpability • It was clear to me and those who witnessed the event that Cst. Mantler did not act out of anger. There was no malice, norgratuitous violence. This was not a situation where personal acrimony took over professional judgment. • He was not intending to punish Mr. T. Rather, as Mr. Burrows again succinctly described it, he misjudged and outrageouslymiscalculated the need and the degree of force necessary to conduct the arrest. • It was something that occurred in the heat of the moment.

There were several variables and errors that contributed to his grossmisjudgment. • He reacted out of panic and a sense of urgency as opposed to anger. Even his victim, Mr. T, described him as looking scared andshaking. However, Cst. Mantler was the one responsible for creating that sense of panic and urgency. • Cst. Mantler’s moral culpability is what is keeping him form serving a jail sentence. If there had been an indication that the kickwas

an act of gratuitous violence, or a result of anger, jail would have been the only option. [83] Mr. McDougall, on behalf of his client, also argued as a further mitigating factor, that because Cst. Mantler perceived thepossibility that Mr. T might engage him in a suicide by cop scenario, that Cst. Mantler was motivated in doing Mr. T a favour. [84] In response, I will only say that the submission was misguided and unfortunate. Case Law [85] I am also guided by the case law that has been provided to me through counsel. I have read and considered all of the cases thathave been provided by counsel.

Those cases included: R. v. Cronmiller et al, 2004 BCPC 1 , 2004 BCPC 0001; R. v. Langlois,2004 BCPC 195 , 2004 BCPC 0195; R. v. Tait, 2005 BCPC 273; R. v. Thomas, 2012 ONSC 6653; R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559; R. v. Gibson, 2003 BCPC 462; R. v. Klassen, [2011] B.C.J. No. 1074; R. v. Kidd, [1998] O.J. No.1739 (CJ); R. v. Bal, [2013] B.C.J. No. 237 (PC); R. v. Sweet, [2007] B.C.J. No. 1747 (PC); R. v.Gray, [2000] O.J. No. 3596 (SC); R. v.Conlon, 2011 BCPC 396; R. v. Jones, unreported, March 31, 2008, Kamloops Reg.

No. 81715-3-C. [86] Sentences for assaults by police officers range from absolute discharges to lengthy periods of incarceration. Althoughsentencing precedents are helpful, they are merely a guide. Each case depends on the circumstances of the offence and the offender. [87] I do not propose to set out in detail the similarities and dissimilarities of the cases that I have reviewed.

In some of the cases theoffenders pled guilty and showed remorse, in others the offenders did not; in some of the cases the offender inflicted gratuitous violencewhile in others there was some degree of provocation; in some of the cases the force used was extreme and others not; and finally, insome of the cases the injuries were severe and others only trifling. SENTENCE [88] One of the most difficult tasks for a trial judge is to impose sentence.

Sentencing involves the exercise of discretion andrequires careful consideration of the individual’s circumstances, the circumstances of the offence and the need for the sentence to meetthe objectives outlined by Parliament. The ultimate goal is to impose a just and fit sentence. [89] This case is a particularly difficult one. [90] I agree that it is easy to be the Monday morning quarterback and evaluate the situation that occurred on January 7, 2011 in slowmotion from the comfort of a judge’s chair. There are no sirens blaring in the background, there is no potential of a gun fight, no

innocent civilians are in harms way and my body is not impaired by the powerful drug called adrenaline. [91] Many who have watched this video will never comprehend how this could occur in a country like Canada, yet others, who arefully informed, will be more sympathetic and have some measure of understanding and compassion for both men involved. [92] In the end, if I am human I must not only have compassion for what Mr. T has been through but what Cst. Mantler has beenthrough. [93] However, that does not take away from the fact that Cst.

Mantler’s decision to act the way that he did, was wrong and unlawful. [94] On behalf of his client, Mr. McDougall has asked me to consider discharging Cst. Mantler and placing him on probation. [95] In considering that recommendation, the test that I must apply is the test set out in a case called Fallofield, (1973) (BC CA), 13 C.C.C. (2d) 450. [96] The first stage of the test is to determine whether it would be in Cst. Mantler’s interest that he receives a discharge. [97] Since a criminal record may have ramifications for future employment in the law enforcement field, a discharge would benefitCst. Mantler.

However, I must be careful not to place too much emphasis on this consideration in light of the fact that the conduct thatgave rise to the offence occurred while he was employed as a police officer. [98] However, given Cst.

Mantler’s age, previous good character and lack of criminal record, I am satisfied that it would clearly bein his best interest that he receive a discharge. [99] The more challenging question is the second one, which is whether the court can conclude it would not be contrary to the publicinterest that he receives a discharge. [100] The public interest encompasses a number of things, including Mr. T and his family. [101] It is clear that these events have had a wide-ranging effect on Mr. T and his family.

I have listened carefully to the victim impactstatement and understand to the extent that I can without walking in Mr. T’s shoes how he and they have been affected. [102] I am also aware to some extent how this offence has affected the community at large and the RCMP and other policing agenciesacross the country. [103] In imposing sentence the court is not looking only at deterring Cst.

Mantler from doing this again, but is also looking at otherprinciples of sentence, such as deterrence to other men and women of law enforcement. [104] For offences of violence the requirement of general deterrence generally militates against the granting of a discharge. It is in thepublic interest that future employers or social organizations know of the criminal activity and have a chance to evaluate it. [105] Furthermore, although many courts have granted discharges, in my opinion, discharges ought not to be commonly granted wherethe offence involves an assault of person under the control of a police officer.

The public needs to assured that they can expect lawenforcement to respect the law. A conditional discharge would not help restore the trust that has been breached. [106] The application of force in this case was severe and unwarranted. [107] We demand an ability to trust those who police us. By law, police are authorized to use force in appropriate circumstances. Thatforce when applied must be used responsibly. Cst. Mantler did not do that. [108] When that trust is broken, officers like Cst. Mantler must be held accountable. [109] Cst.

Mantler swore an oath to uphold the law and not break it. [110] After carefully considering the facts in this case, the case law, the mitigating and aggravating circumstances, the need forgeneral deterrence and denunciation, and the public’s confidence in effective enforcement of criminal law, I have concluded that theimposition of a discharge would be contrary to the public interest. [111] Cst. Mantler, I am suspending the passing of sentence and placing you on probation for a period of 18 months. [112] The terms of the probation order are as follows: You shall keep the peace and be of good behavior. 1.

You shall appear before the court when required to do so by the court. 2. You shall notify the court or your probation officer in advance of any change of name or address and promptly notify the court of theprobation officer of any change of employment or occupation. 3. You shall report in person to the probation officer by 4 p.m. today to the probation office at 1355 Water Street, Kelowna, BC, andafter that you shall report as and when directed by the probation officer.

4. When first reporting to the probation officer, you shall inform him or her of your present residential address and phone number and you shall not change your address or phone number at any time without first providing written notice to your probation officer. 5. You shall have no contact or communication, directly or indirectly with Mr. T, except with the advance written consent of the probation officer or through legal counsel. 6. You shall attend, participate in and successfully complete any assessment, counseling or program as directed by the probation officer.

You shall also comply with all the rules and regulations of any such assessment, counseling or program. 7. Subject to the wishes of Mr. T, you shall participate in a victim/offender reconciliation program under the supervision and direction of your probation officer. [I sincerely hope that Mr. T gets to a space and level of understanding where he is willing to meet with Cst. Mantler] 8. Under the direction and supervision of the probation officer, you shall successfully complete 50 hours of community work, which shall be completed no later than September 3, 2013. 9.

Prior to commencing any employment in law enforcement, you shall successfully complete use of force training to the satisfaction of your probation officer. [ 113 ] In these unique circumstances it is not necessary to make an order prohibiting you from possessing firearms, nor do I feel that it is necessary as a term of the probation order. [ 114 ] You must provide a sample of your DNA pursuant to

section 487.051. [ 115 ] You must also pay a victim fine surcharge of $50. __________________________________ The Honourable Judge G.W. Koturbash