R. v. Atleo Date:, 2014 BCPC 15

Citation: R. v. Atleo Date: 20140109 2014 BCPC 0015 File No: 76538 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHAMROCK ALEXANDER ATLEO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: J. Cryder Counsel for the Defendant: C. Churchill Place of Hearing: Nanaimo , B.C.

Date of Hearing: December 19, 2013 Date of Judgment: January 9, 2014 Introduction [ 1 ] Mr. Atleo has entered a plea of guilty to one count of using a forged document, contrary to

section 368 of the Criminal Code . Mr. Cryder, for the Crown, submits that the appropriate sentence is a suspended sentence and a period of probation. Mr. Churchill, for the defence, submits that a conditional discharge is appropriate. [ 2 ] Mr. Atleo is a police officer. [ 3 ] There are a large number of decided cases in which discharges have been granted or refused to police officers who have offended. A useful catalogue of those is found in R vs Gorman 2009 NSPC 55 ; [2009] NSJ #604.

In that case, Stroud, PCJ remarked that “... cases dealing with requests by police officers for discharges are all over the map ...”. I would express that thought differently. I could describe a reasonable set of public policy imperatives which would justify the decision to grant or refuse a discharge in any one of the cases which I have read.

However, I could not describe a single set of public policy imperatives which would justify the conclusion in all of those cases because it is not possible, in my view, to explain why a discharge was granted in some and refused in others. [ 4 ] The state of the jurisprudence, as described in paragraph 3, offends the statutory principle that similar sentences should be imposed upon similar offenders who commit similar offences [ Criminal Code s. 718.2(b)] and the Charter value of equality before the law. [ 5 ] In my view, the decision to grant or refuse a discharge should not be made ad hoc or ad hominem , but rather by the application of clearly-articulated principles.

In these reasons, I will do my best to identify a set of governing principles. However, it is an issue in relation to which appellate guidance would be welcome. The Offence [ 6 ] The particulars recited in paragraphs 7 - 18 are taken from an agreed statement of facts filed at the sentencing hearing. [ 7 ] Mr. Atleo and Ms. Hovind were partners in an intimate relationship from 2008 to 2011. They separated in March, 2011. [ 8 ] Early in the relationship, Mr. Atleo purchased a 2008 Chevrolet Cobalt (“the Chevrolet”).

The Chevrolet was initially registered solely in his name, but was later registered in the joint names of Mr. Atleo and Ms. Hovind. By 2011, Ms. Hovind was insured as the principal operator of the Chevrolet and paid the insurance premiums. Mr. Atleo made all of the payments on the Chevrolet. Mr. Atleo also purchased a truck for his own use. [ 9 ] Ms. Hovind moved out in March, 2011, taking the Chevrolet with her. [ 10 ] On July 25, 2011, Mr. Atleo attended at Ms. Hovind’s home and drove away in the Chevrolet. [ 11 ] On July 26, 2011, Mr.

Atleo attended at Wheaton Pontiac Buick GMC (“Wheaton”), the Chevrolet dealer in Nanaimo, British Columbia, to trade in the Chevrolet on a new vehicle. The amount owing on the Chevrolet was greater than its trade-in value. Mr. Atleo paid out the balance owing and received credit for the trade-in value on his purchase of the new vehicle. [ 12 ] Ms. Smith, Wheaton’s manager, informed Mr. Atleo that Ms. Hovind’s signature on the transfer document for the Chevrolet would be required to complete the transaction. Ms. Smith’s usual practice would be to require Ms.

Hovind to attend at Wheaton to sign the document in her presence. However, she made an exception in this case “... because Mr. Atleo was a long-time customer known to her and known to be an RCMP officer”. Ms. Smith signed the document on behalf of Wheaton, and gave it to Mr. Atleo to take with him to procure Ms. Hovind’s signature. [ 13 ] Mr. Atleo returned to Wheaton on August 2, 2011, and provided Wheaton with the transfer form for the Chevrolet, bearing what purported to be Ms. Hovind’s signature beside his own. In fact, Mr. Atleo had forged Ms.

Hovind’s signature, and she had not consented to the transaction. [ 14 ] Mr. Atleo completed the transaction on August 2, 2011. The existing license plates and insurance for the Chevrolet could not be transferred to the new vehicle because the plates and insurance were in the joint names of Mr. Atleo and Ms. Hovind, and the new vehicle was in the name of Mr. Atleo alone. For that reason, new plates and insurance were issued for the new vehicle. Mr. Atleo took the old plates with him. [ 15 ] Shortly after August 2, 2011, Ms.

Hovind attempted to cancel the insurance on the Chevrolet, so as to receive a pro rata refund of the annual insurance premium (which she had paid). However, ICBC declined to issue the refund because the plates had not been returned (they being in the possession of Mr. Atleo). If the plates had been surrendered to ICBC on August 2, 2011, Ms. Hovind would have been entitled to refund of unearned premium in the amount of $656. [ 16 ] On August 1, 2012, Ms. Hovind reported to the RCMP that her signature on the transfer document had been forged. The RCMP undertook an investigation.

[ 17 ] On September 12, 2012, Mr. Atleo was interviewed by investigating officers. He told three lies during the interview: a. He denied that Wheaton had given him any documents for Ms. Hovind to sign. b. He denied that he had forged Ms. Hovind’s signature, or asked anyone else to do so. c. He said that Ms. Smith had told him not to worry about the insurance because Wheaton would take care of it. He described Ms. Hovind as a liar, motivated by jealousy at Mr. Atleo’s recent marriage. [ 18 ] On October 5, 2012, Mr.

Atleo contacted the investigating officers, retracted the lies which he had told on September 12, and admitted the facts outlined above. [ 19 ] Mr. Churchil submitted, and Mr. Cryder conceded, that Mr. Atleo did not benefit financially from the transaction because the amount which he paid to clear title was greater than the trade-in value for which he received credit on the purchase of the new vehicle. I think that the matter may be more complex than that because: a. Mr.

Atleo was legally responsible for the balance owing on the Chevrolet, would have remained so in any event, and received a discharge of that obligation when he paid the balance. b. Mr. Atleo then appropriated to himself the value of the Chevrolet by trading it in on the new vehicle. Whether that resulted in a financial benefit to Mr. Atleo depends on the nature and extent of Ms. Hovind’s interest in the Chevrolet. A decision on that question would require a consideration of: c. the domestic circumstances and arrangements of Mr. Atleo and Ms.

Hovind between 2008 and 2010; and d. the competing presumptions of advancement and resulting trust in the context of a marriage-like relationship in the first decade of the 21 st century. Having heard no evidence of the former, I am not in a position to analyze the latter. However, it is not clear to me that Mr. Atleo derived no financial benefit from the transaction. [ 20 ] Mr. Churchill informs me that Mr. Atleo and Ms. Hovind have now resolved, by agreement, all outstanding property and financial issues between them.

It is likely that the questions raised in paragraph 19 were taken into account in that resolution. [ 21 ] In her victim impact statement, Ms. Hovind says: ... I called the dealership and said ... I did not sign the transfer papers. ... I spent hours, months in stress to find out how he could sign my name and get away with it. I felt violated, and it was very emotional for me to prove that I was truthful, but him in his authority thought he could get away with it. ... So many sleepless nights & emotional stress trying to prove myself as he said “he was in a position of authority.” The Offender [ 22 ] Mr.

Atleo is 56 years of age. His paternal grandfather was Hereditary Chief of the House of Glakishpiitl of the Ahousaht people, members of the Nuu-chah-nulth Tribal Council. His father and uncle have also served in the capacity of Hereditary Chief. He was born in the village of Ahousaht, about 200 kilometres from Nanaimo. [ 23 ] Each of Mr. Atleo’s parents was a survivor of the residential school system, where they were beaten for speaking their ancestral language.

As adults, they were compelled to send their children to residential school, under threat of apprehension by the Department of Indian Affairs. [ 24 ] At age 7, Mr. Atleo was sent to the United Church residential school in Port Alberni (about 100 kilometres from Ahousaht), where he was sexually abused by the caucasian dormitory supervisor. At age 12, he was sent to live in a series of boarding homes in Victoria (about 300 kilometres from Ahousaht) while he attended high school. He completed grade 11, and returned to Ahousaht at age 17 or 18. [ 25 ] In 1980, at age 23, Mr.

Atleo was accepted for training as an RCMP officer. He completed the training program in 1982, and has been a serving RCMP officer since that time. He is, and has been for some years, assigned to the Duncan detachment as the liaison between the RCMP and the Cowichan First Nation, whose community is in the Cowichan Valley, about 50 kilometres from Nanaimo and about 250 kilometres from Ahousaht. His RCMP colleagues describe him as a dedicated professional and a valued member of their team.

The councillors of the Cowichan First Nation express their appreciation for his services and their respect for him as an individual. [ 26 ] Mr. Atleo has no criminal record. [ 27 ] Mr. Atleo married in 1983, at age 27. The marriage produced two children, and ended in 1997. He remarried in 2002 and divorced for the second time in 2008. There were no children of that marriage. As noted above, Mr. Atleo had an intimate relationship with Ms. Hovind from 2008 to 2011. They did not marry, and have no children. In December, 2011, Mr.

Atleo married for the third time, and now resides with his third wife. [ 28 ] During his interview for the preparation of his pre-sentence report, Mr. Atleo attributed the failure of his first two marriages, and of his relationship with Ms. Hovind, to alcohol abuse and infidelity on the part of the women involved. Human relationships are

individual and complex. I have not heard evidence about the history or circumstances of those relationships, and am in no position toform an opinion as to the reasons for their failure. However, I can and do conclude that Mr. Atleo’s family history, and particularly theresidential-school experience of Mr. Atleo, his parents and his siblings, has adversely affected Mr. Atleo’s ability to form and maintainhealthy and stable adult relationships. Mr.

Atleo is presently receiving individual professional counselling from a doctor and a clinicalcounsellor, and also participates in counselling sessions with his wife and a clinical counsellor. RCMP Sanctions [29] After Mr. Atleo’s confession, the RCMP initiated internal discipline procedures, as a result of which Mr. Atleo was found to beguilty of disgraceful conduct. He was fined 9 days’ pay (approximately $2900 before tax), and a letter of reprimand was place in hisfile. Officers convicted of criminal offences are normally transferred to a different detachment. Mr.

Atleo was not transferred becauseof the value of his work with the Cowichan First Nation. Legal Principles Pertinent to Absolute & Conditional Discharges [30]

Section 730 of the Criminal Code provides that, where an offender has plead guilty to, or been found guilty of, an offence (otherthan an offence for which a minimum sentence is prescribed or one punishable by more than 14 years’ imprisonment), the court maydirect that the accused be discharged absolutely or on conditions prescribed in a probation order. If the court so orders, the offender isdeemed not to have been convicted. If I grant Mr. Atleo a discharge, he will not acquire a criminal record as a result of his offence. [31] A discharge, absolute or conditional, may be granted only if: (

i) it is in the best interest of the offender; and (ii) it is “... notcontrary to the public interest”. On the latter point, the question is not whether the refusal of a discharge would advance the publicinterest, but rather whether the grant of a discharge would injure the public interest. Put another way, the court ought to enquirewhether, and if so how, a grant of a discharge might be injurious to the public interest. [32] I think it necessary to dissent from the view, expressed in R s Gillan 2009 BCPC 241; [2009] BCJ #1528 @ paragraph 86, that adischarge is always in the best interest of the offender.

If that were the view of Parliament, it would not have directed judges to considerthe question when a discharge is proposed. Further, I do not think that Gillan can be reconciled, in this respect, with R vs Fallofield[1973] BCJ #559; (BC CA), [1973] 6 WWR 472; 13 CCC(2d) 450, in which the Court of Appeal said: Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the best interests ofthe accused that he should be discharged either absolutely or upon condition.

If it is not in the best interests of the accused, that, ofcourse, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration intooperation. * * * Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is notnecessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions.

In my view, I am bound to follow Fallofield rather than Gillan. [33] I will not attempt a catalogue of cases in which a discharge is not in the interest of the offender. However, by way of example: a. I have seen some offenders at the early stages of a criminal career who are only encouraged by leniency to continue that career, andwho may be diverted to a more productive and healthy lifestyle by a sharp rap on the knuckles. b.

I see many people suffering from addictions who are unable to benefit from treatment programs in the community, but who dobenefit from such programs in custody. [34] The Criminal Code does not define the phrase “public interest”. In seeking to define the phrase, I think it helpful to bear inmind some admonitions of high authority in relation to the jurisdiction of the court to decline to enforce contractual terms on grounds ofpublic policy.

The following are, in my view, apt to the present question: It is the province of the statesman, and not the lawyer, to discuss, and of the legislature to determine, what is the best for the public good,and to provide for it by proper enactments.

It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions ofour predecessors and of our existing courts, from text-writers of acknowledged authority, and upon the principles to be deduced fromthem by sound reason and just inference; not to speculate upon what is best, in his opinion, for the advantage of the community. Some ofthese decisions may have no doubt been founded upon the prevailing and just opinions of the public good; for instance, the illegality ofcovenants in restraint of marriage or trade.

They have become a part of the recognized law, and we are therefore bound by them, but weare not thereby authorized to establish as law everything which we may think for the public good, and prohibit everything which wethink otherwise. Egerton v. Brownlow (1853) 4 HLC 1 @ page 123 quoted with approval in Re Millar Estate [1938] 1 SCR 1

... public policy should be invoked only in clear cases, in which the harm to the public is substantially incontestable, and does notdepend on the idiosyncratic inferences of a few judicial minds ... Fender v. Mildmay [1937] 3 All ER 402 quoted with approval in Hobbs vs Robertson 2004 BCSC 1088; 243 DLR (4th) 700 @ paragraph 74 The question, in my view, is not what an individual judge may consider to be in the public interest, but rather what Parliament intendedby the phrase.

In addressing that question, I should be guided, not by my individual views, but rather by the language of the statute andby principles established by the existing jurisprudence. [35] The judgment in Fallofield offers only the following limited guidance in relation to the question whether a discharge, in anyparticular case, would be contrary to the public interest: In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not precludethe judicious use of the discharge provisions. * * * The power ... [to grant a discharge] ... should not be exercised as an alternative to probation or suspended sentence. [The power to grant a discharge] ... should not be applied routinely to any particular offence.

This may result in an apparent lack ofuniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences inthe circumstances of cases. As noted in Fallofield, the public interest most commonly mentioned in relation to the grant or refusal of a discharge is the publicinterest in the denunciation and deterrence of crime. However, Fallofield cautions against giving undue weight to denunciation anddeterrence. I find in that brief remark an appealing solution to the uncertainty created by the existing jurisprudence.

It seems to mereasonable to conclude that the factors which Parliament intended judges to consider in determining whether a discharge would not becontrary to the public interest must be those identified as the objectives of sentencing in sections 718ff of the Criminal Code. Putanother way, it seems to me that, in any individual case, a discharge would not be contrary to the public interest unless it wouldmaterially inhibit the achievement of one or more of those objectives.

Only in that way can a judge adjudicate the question by referenceto the public interest as defined by Parliament. [36] I am also assisted by the following guidance from the Alberta Court of Appeal in R vs MacFarlane [1976] AJ #429; 1976ALTASCAD 6 , 55 AR 222; 3 Alta LR (2d) 341 @ paragraphs 14 – 20: In consideration of the exercise of the discretion to grant an absolute or conditional Discharge, we emphasize that it is quite impossible tolay down rules which would cover the myriad of situations which may appear before a Judge confronted with the task of appropriatesentence in any given case.

We are of the opinion, however, that the following are some of the relevant factors which must be consideredin every case. Firstly, there is the nature of the offence. While it is to be borne in mind that the

Section may be used in respect of any offence other thanone for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life, or bydeath, one must nevertheless be concerned with the seriousness of the offence, and it would seem appropriate that the more serious theoffence, the less frequent would be the use of a Discharge in sentencing. It would, for instance, be a most exceptional case where a crimeinvolving violence would be dealt with by an order of Discharge.

Secondly, one has to consider the prevalence of the particular offence as it may exist in the community from time to time. Thirdly, one must consider whether an Accused stood to make some personal gain at the expense of others, as distinct from someactivity which might be in the nature of a prank or in respect of which his motives were other than self-interest. Fourthly, where the offence is relating to property, as here, the value of the property destroyed or stolen must be relevant. The theft of aball-point pen would not ordinarily be regarded as seriously as the theft of a colour television set.

Fifthly, we think that it is relevant to consider whether the crime was committed as a matter of impulse, and in the face of unexpectedopportunity, or whether it was calculated. Sixthly, we think it relevant to consider whether the circumstance that an Accused has committed the offence is something which shouldbe a matter of record so that members of the public may have the opportunity of being aware of the fact that that Accused had committedthe offence in question.

Theft from an employer would, in most cases, involving as it does a breach of trust, not warrant a Discharge, as itmay be thought that prospective employers should have the means of knowing something about the character of the prospectiveemployee. Even here there may be exceptional circumstances, such as a falling-out, or a civil dispute about money which did not amountto colour of right, but which might result in the offence being in the nature of a technical one. Principles in Relation to Discharges for Police Officers [37]

Section 718.2 of the Criminal Code requires a sentencing judge to consider whether “... the offender, in committing theoffence, abused a position of trust or authority in relation to the victim ...” (underlining added). That aggravating factor was correctly

taken into account in such cases as: a. R vs Cusack [1978] NSJ #538; (NS CA), 41 CCC (2d) 289, in which an officer on duty took the opportunity of aroutine traffic stop to steal cash from a driver’s wallet; b. R vs Perreault 2010 BCPC 260, in which an officer filed fraudulent claims for overtime pay. In Cusak, the officer was in a position of authority in relation to the motorist whom he had detained.

In Perrault, the officer owed aduty of trust to the employer whom he had defrauded. [38] However, in light of the express language of the statute, it is less clear that, when imposing a sentence for a crime, a courtshould consider an off-duty police officer to be in a position of trust or authority. [39] In R vs Robinson 2012 BCSC 1134; [2012] BCJ #1578, an off-duty police officer struck and killed a motorcyclist, fled thescene and drank alcohol in order to render moot any demand for a breath sample.

At paragraph 14, Dillon, J said (underlining added): Because police officers occupy a special position of trust in the community, their sentence when they commit crimes will be more severethan that of an ordinary person .... It matters not whether he was on or off duty .... Mr. Robinson’s relationship to the motorcyclist was not one of authority or trust. He owed the same obligations, and stood in the samerelation, to the motorcyclist as any other driver. The question whether it was in the public interest to impose more stringent sanctions onMr.

Robinson than on a driver who was not a police officer is a complex and debatable one. There is a public interest in promoting thehighest standards of behaviour by police officers in both their public and private lives. Respect for law enforcement officers contributesto respect for the law, and so tends to promote law-abiding behaviour. There is also a public interest in attracting well-qualified peopleto public office. Respect for their right to a private life tends to encourage such applicants. One must also consider the principle ofequality before the law.

It is not clear to me why an offence committed by a police officer, unrelated to the officer’s duties, shouldattract a more severe penalty than the same offence committed by someone in another profession. I do not presume to decide which ofthese public-policy objectives is more important than another.

I simply observe that Parliament has directed that the courts considerwhether the offender was in a position of trust or authority “... in relation to the victim ...”, which is a different concept from being in aposition of trust or authority “... in the community ...”. [40] Having expressed my doubt respecting the principles stated in Robinson, I acknowledge that it is an authority binding upon me,and will apply those principles in this case to the best of my ability. [41] In Robinson, Dillon, J said that “... it matters not ...” whether the offence was committed when the officer was on duty.

I donot think that the phrase was intended to be taken literally, nor that it should be. Abuse of power is always a very serious matter. Apolice officer who makes use of his official position to commit an offence, or to conceal an offence which he has committed, shouldincur a more stringent penalty than a private citizen who commits a similar offence. The sentencing imperative is less strong in relationto a police officer who commits an offence, but does not take advantage of his official position or powers in so doing.

To that extent, atleast, it matters whether the officer was on or off duty, and, if off duty, it matters whether the officer made use of his official position orpowers to commit or cover up the offence. [42] There is no statement in Robinson to the effect that a discharge may not be granted to a police officer who has offended. Discharges have been granted to police officers in many cases, recently reviewed in R vs Klassen 2011 BCPC 109; [2011] BCJ #1074. It seems to me that, in deciding whether a discharge should be granted to Mr.

Atleo, I should consider the objectives and principles ofsentencing stated in the Criminal Code, taking into account in relation to each the fact that Mr. Atleo is a police officer. Applying the Principles in This Case [43] In this case, the advantage to Mr. Atleo of a discharge is manifest. No disadvantage was suggested in argument, nor am I awareof any. At 56 years of age, with a previously-unblemished record, he is unlikely now to embark on a life of crime. He has nosubstance-abuse issues. He is receiving adequate professional help out of custody. I am satisfied that a discharge would serve hisinterests. [44]

Section 718 of the Criminal Code provides that the “... fundamental purpose of sentencing is to ... contribute to respect for thelaw ... by imposing just sanctions that have one or more ...” of the objectives stated in the section; i.e. denunciation, deterrence(specific and general), protection of the public, rehabilitation of the offender, reparations to victims and a sense of responsibility inoffenders.

I will return to the phrase “just sanctions” at the end of these reasons. [45] In relation to denunciation and deterrence, I refer to the following observations of Fradsham, PCJ in R vs Nagashband 2008ABPC 302; [2008] AJ #1241 @ paragraph 65: I am satisfied that a court may consider the external consequences flowing from the offender's acts (i.e., consequences external to thepenalty provisions of the Criminal Code) when determining whether a sentence adequately addresses the sentencing objectives ofdeterrence and denunciation.

In other words, whether or not the sentencing objectives of deterrence and denunciation have been achievedin a particular case will be determined by considering both the deterrent and denunciatory effect of the sentence imposed under theCriminal Code, and the deterrent and denunciatory effect of the non-Criminal Code consequences which befall the offender as a result ofhis or her offending behaviour.

I must therefore consider whether the sanctions already imposed by the RCMP constitute a sufficient denunciation and deterrent in thiscase. [46] I may also take into account the denunciatory and deterrent effect of the public obloquy incurred by Mr. Atleo, particularlyamong his professional colleagues and contacts, as a result of this prosecution, although I must be mindful of the admonition that this

factor should not be given undue emphasis: Robinson @ paragraph 16. [47] Because the factors discussed in MacFarlane appear to me to be primarily concerned with denunciation and deterrence, Iconsider them now. a. Mr. Atleo did not commit a violent offence. He attempted to short-circuit the resolution of a domestic property issue by

an act ofdishonesty. b. I have no information about the prevalence of similar offences in this community. I have been a judge in Nanaimo for a little lessthan two years. About 70% of my workload is crime. I have not previously seen a similar offence charged in my courtroom. c. No one would describe Mr. Atleo’s crime as a prank, or as a matter in which he was disinterested. On the other hand, it seems likelythat his subjective motive was to avoid a verbal confrontation with Ms. Hovind at a delicate time in their relationship, rather than anymaterial financial advantage. d.

It is difficult to assess the value of the property interest in question. It may be that, if the matter had proceeded to a judicialresolution, Mr. Atleo would have been found to be the sole beneficial owner of the Chevrolet. By his conduct, he deprived Ms. Hovindof the chance to establish a beneficial interest. I am not in a position to value that chance. The value of a 3 year-old Chevrolet Cobaltwas likely a few thousand dollars. However, because the trade-in value was less than the amount owing, the value of the owner’sinterest was zero. e. It cannot be said that Mr.

Atleo committed his crime on impulse - a week elapsed between the time he obtained the form and thetime when he returned it bearing Ms. Hovind’s forged signature. However, a similar factor arises in this case. I think it a fair inferencethat Mr. Atleo forged the signature, not with the conscious intention of attaining a financial advantage, but rather because he did not wishto engage in a confrontation with Ms. Hovind over the issue. The choice which he made was dishonest, profoundly wrong, andinexcusable.

However, it may be considered to be symptomatic of an individual who, by reason of his personal and family history, hasstruggled with intimate relationships. While it would be too much to refer to his conduct as involuntary, it must be understood in thecontext of his personal and family history. f. While Mr. Atleo’s crime was one of dishonesty, the particulars are now well-known to his employer and to the community which heserves. They have chosen to retain him in their service because of the value which he contributes and their belief in the sincerity of hisrepentance.

A conviction is not necessary to bring the matter to their attention. In these circumstances, it seems to me that the public interest in denunciation and deterrence would not be materially affected by adischarge. [48] It was not suggested that Mr. Atleo is a threat to re-offend, nor that there is a need to impose a custodial sentence for theprotection of the public. [49] Mr. Atleo’s rehabilitation depends, in part, upon promoting in him a sense of responsibility for his actions and an appreciationof the seriousness of his conduct. Mr.

Atleo spoke at his sentencing hearing, and took full responsibility for his actions. I am satisfiedthat he fully appreciates the seriousness of the matter, and that he will not offend again. I hope and expect that the counselling serviceswhich he is now receiving will assist him to address domestic issues in a more responsible way in future. [50] Counsel are agreed that Mr. Atleo should pay restitution to Ms. Hovind in the amount of the wasted ICBC premium.

That willbe a term of the probation order, and will address the statutory objective of promoting restitution. [51] The foregoing discussion supports the conclusion that each of the fundamental purposes of criminal sentencing, as defined bythe Criminal Code, can be achieved in this case by a discharge. The sole remaining question is whether the following facts, individuallyor in combination, mandate the conclusion that it would be contrary to the public interest to grant a discharge to Mr. Atleo: a. He is a police officer. b. The fact that he is a police officer was a factor in Ms.

Smith’s decision, contrary to her usual practice, to allow Mr. Atleo to procureMs. Hovind’s signature on the transfer form. c. He lied to the investigating officers at his first interview. [52] The first fact, alone, is not a sufficient reason to refuse Mr. Atleo a discharge. Discharges may be granted to police officers. [53] In relation to the second fact, if, in his dealings with Ms. Smith, Mr. Atleo had invoked his status as a police officer as a reasonto trust him to procure Ms. Hovind’s signature, I would be inclined to regard that as a sufficient reason to refuse a discharge.

It would bea very serious matter to invoke one’s professional standing as a cloak for a fraud. However, it is not alleged that Mr. Atleo did so. Rather, Ms. Smith acted on her knowledge of his role as a police officer, without encouragement (in that respect) from Mr. Atleo. [54] The third fact is a matter of serious concern. The investigation was conducted by officers of the Nanaimo RCMP detachment. I have no reason to doubt that the investigating officers conducted themselves properly. However, the assignment of officers from aneighbouring detachment imposed a special onus on Mr.

Atleo to ensure that the investigation was conducted in such a way as to causeno one to be concerned about its objectivity. Instead, he tainted the inquiry by lying to the investigators. [55]

Section 718.2(

e) of the Criminal Code provides that “... all available sanctions other than imprisonment that are reasonable inthe circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.” Thatprovision has given rise to a large body of jurisprudence, including the leading cases of R vs Gladue (SCC), [1999] 1SCR 688 and R vs Ipeelee 2012 SCC 13 , [2012] 1 SCR

Section 718.2(

e) has no application in this case - the Crown is

not seeking a custodial sentence. Because Gladue and Ipeelee derive from

section 718.2 (e), it is not clear to me that they have any application to the issue which I must consider. However, it seems to me that Gladue and Ipeelee exemplify a broader principle of sentencing; i.e. it is the duty of a sentencing judge to seek to understand how the personal history of the offender may have contributed to the chain of causation leading up to the offence. Such an understanding is necessary to a fair assessment of the culpability of the offender, and hence to the assessment of “just sanctions” for the offence, an objective declared by

section 718 to be a “fundamental purpose of sentencing”. That imperative does not depend upon the ethnicity of the offender. However, because of the tragic history of First Nations in Canada, it will frequently arise for consideration in relation to aboriginal offenders. In the case of Mr. Atleo, one may readily understand how his tragic family and personal history might lead, sequentially, to his history of unstable intimate relationships, his decision to take the Chevrolet rather than negotiate the issue with Ms.

Hovind, his forgery of her signature and his lies to the investigating officers. [ 56 ] I find the most challenging aspect of this case to be the balancing of the factors mentioned in paragraph 54 with those mentioned in paragraph 55. More precisely, I find it difficult to balance the need for denunciation of an RCMP officer who lies in the context described with the need for understanding of a person who has suffered as has Mr. Atleo and his family.

In the end, I think that compassion is, in this case, a more compelling imperative than denunciation. [ 57 ] For the reasons given, I conclude that, in this case, a discharge would not materially impede any of the fundamental principles or objectives of sentencing, as defined by Parliament, and so would not be contrary to the public interest. [ 58 ] Counsel are agreed that, if I determine that a discharge is appropriate (as I have), it should be a conditional discharge with a term of probation of one year on the following conditions: a. Mr.

Atleo is to keep the peace and be of good behaviour and attend court when required to do so by the court. b. Mr. Atleo is to report in person to a probation officer no later than January 15, 2014, and thereafter as directed by his probation officer. c. Mr. Atleo is to have no contact, directly or indirectly, with Ms. Hoven except through counsel. d. Mr. Atleo is to pay the sum of $656 to the clerk of the court, to be remitted by the clerk to Ms. Hovind as restitution, on or before February 1, 2014. e. Mr.

Atleo is to perform 40 hours of community work service, as directed by his probation officer, and to complete those hours by September 30, 2014. I impose a one-year period of probation on those terms. January 9, 2014 _____________________________ T. Gouge, PCJ