R. v. Browning, 2023 BCPC 202

Citation: R. v. Browning 2023 BCPC 202 Date: 20230828 File No: 96188-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. LACEY ANGELA BROWNING REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. DICKEY Counsel for the Crown: K. Marks Counsel for the Defendant: D. Butcher, K.C. Place of Hearing: Kelowna , B.C.

Date of Hearing: June 14, 2023 Date of Judgment: August 28, 2023 [ 1 ] THE COURT: Lacy Angela Browning has pled guilty to an assault. Constable Browning is a member of the Royal Canadian Mounted Police and was working in that capacity at the time of the offence. Crown is seeking a four-month custodial sentence that they submit could be served in the community under a conditional sentence order. The defence argues that a conditional discharge is a proper and fit sentence. It is my intention to provide a

summary of the facts of this case, the circumstances of the offender, the law, and conclude with my analysis and decision. Circumstances of the Offence [ 2 ] An agreed statement of facts was filed in this matter. I will provide a

summary of these admissions. On January 20, 2020, at 17:05, a caller contacted 911 advising of a possible suicidal female. The caller requested police provide assistance by attending to the female's residence. The female was Mona Wang, the complainant in this matter. The 911 operator relayed this information to Constable Browning and inquired whether she would be able to attend the call.

Constable Browning was performing other police duties at the time, but agreed to attend and arrived at 17:27. [ 3 ] I am advised that Constable Browning was at the end of her shift when the dispatch came in and she received permission to work overtime and attend the call. She also agreed to attend the call without a backup. I agree with defence counsel that this was a mistake. [ 4 ] The apartment building was an off-campus residential student building with a secure front door. Constable Browning was able to eventually enter through the secure entrance and, at 17:41, knocked on the front door of Ms. Wang's suite.

Shortly after, she gained entry. Constable Browning announced that she was police, but heard no response. She found Ms. Wang laying on her side in the bathroom. Constable Browning found a boxcutter, remnants of Tylenol and Melatonin, and an empty bottle of wine beside Ms. Wang. [ 5 ] It was admitted that Ms. Wang had engaged in self-harm by making incisions with the boxcutter on her chest and upper arms. Further, it was admitted that she had consumed approximately 70 Tylenol and 30 Melatonin pills and half a bottle of wine.

Constable Browning was incorrectly advised by the 911 operator that the suicidal female was addicted to crystal methamphetamine and coming down. [ 6 ] Dispatch contacted Constable Browning asking if she required backup as other officers were a significant distance from the scene. Constable Browning advised, "No, it's a whole bunch of dramatics right now. She's in the bathroom. She's staying there." She also advised that Ms. Wang was pretending to sleep.

She later advised dispatch at 17:47 that they could slow down and redirect backup as everything was fine and, "It's a lot of dramatics." Dispatch contacted BC Ambulance at 17:49 to attend the scene and wait for Constable Browning for access to the building. [ 7 ] Constable Browning was in a difficult situation as she believed she needed to attend to the front door of the apartment building to provide access to BC Ambulance. Constable Browning, also, was of the belief that she could not leave Ms. Wang to attend to the front door. This was a reasonably held belief due to the circumstances of Ms. Wang at the time.

Constable Browning told Ms. Wang to get up, but she refused to do so. Constable Browning arrested Ms. Wang under the Mental Health Act and placed her in handcuffs. A struggle ensued, but the circumstances of the confrontation do not form part of the actus reus of the offence. [ 8 ] The offence of assault occurred when Constable Browning did the following: 1. Constable Browning dragged Ms. Wang out of Ms. Wang's suite down the hallway into an elevator and out of the elevator to the front lobby. It is agreed from the suite to the elevator is 22 metres and from the elevator to the front of the lobby is 6.9 metres.

Ms. Wang at the time was wearing a bra, leggings, and socks. Video surveillance depicts these events. 2. Ms. Wang raised her head off the ground. Constable Browning pushed Ms. Wang's head down with her boot. 3. Constable Browning picked Ms. Wang's head up by the hair and lifted her head off the floor. Constable Browning then leaned over to speak to Ms. Wang and returned her head to the floor. [ 9 ] The three incidents of assault were contrary to RCMP training and not reasonable or necessary in the circumstances. Constable Browning then transported Ms. Wang to the hospital. Ms.

Wang was certified under the Mental Health Act and discharged three days later. Constable Browning is five-foot-eight and 140 pounds and Ms. Wang was five-foot-four and approximately 120 pounds. [ 10 ] Ms.

Wang suffered the following injuries: 1. an abrasion around the left eye with a bruise above the left eye and a hematoma on the right side of her forehead; 2. an abrasion over the right breast approximately six by three centimetres in size; 3. bruising over the sternum, and superficial lacerations over the anterior chest wall; 4. laceration of the left wrist and multiple superficial lacerations of the right shoulder and bruising over both arms; and 5. lacerations over the anterior chest wall which were inflicted by Ms. Wang to herself with the boxcutter. [ 11 ] Ms.

Wang filed a victim impact statement in this matter. The statement is somewhat dated as it is one-and-a-half years old. It is clear, however, that this incidence has had a significant effect on Ms. Wang. She reports suffering physical and emotional trauma. She

reports that, as a result of the incident, she is isolated and feels shame. She reports suffering financially due to attendance at counselling sessions for the trauma suffered. She believes that the effects will last the remainder of her life. The Circumstances of the Offender [ 12 ] Constable Browning is a status member of the NunatuKavut Inuit of South and Central Labrador. A Gladue report has been filed along with a psychological report and reference letters.

The Gladue author reports that Constable Browning as a child and youth experienced "poverty, physical, sexual, and mental abuse, family and community violence, instability, criminal behaviour, and the normalization of substance abuse and violence." Her grandmother attended residential school and refused to acknowledge her Indigenous heritage. This attitude was passed down to Constable Browning's mother who discouraged Constable Browning from having any interest in the Inuit culture. Constable Browning, as a result, is disconnected from her culture which she regrets.

This, unfortunately, is a consequence of the Canadian Government's policy of cultural genocide of Indigenous people. [ 13 ] Constable Browning's upbringing was extremely difficult. The house she lived in with her mother and sister was "hardly habitable." They were extremely poor. Her mother, apparently, was emotionally distant and could be violent including with her children. At times, Constable Browning was neglected or abandoned by her mother and was often left to raise herself and her sister. [ 14 ] Constable Browning is an extremely hard worker. She started working in agriculture at the age of 12.

As an adult, prior to becoming a member of the RCMP, she often worked at more than one job at a time. Constable Browning had been a member of the RCMP since September of 2008. She has been in a frontline role for most of that time since. Constable Browning has received training in programs for crisis intervention and de-escalation and incident management intervention model. [ 15 ] Defence argues the training received by police officers in how to respond to persons in a mental health crisis is extremely limited.

I am advised, specifically, that the training received in this area by Constable Browning was limited to a three-hour video on de- escalation and crisis intervention. [ 16 ] Constable Browning reports that by 2017 she acknowledged to herself and close friends that the job had taken a toll on both her mental and psychological health. This appears to have been further compounded by a romantic relationship that she entered into with a fellow police officer. That officer was suspended for six months for what was referred to by the Gladue author as significant deceitfulness and inappropriate behaviour.

Constable Browning appears to have received a written reprimand that was unrelated to her on-duty conduct. The other officer, after the suspension was completed, then returned to Constable Browning's watch.

This resulted in Constable Browning having a significant increase in stress, and her mental health continued to deteriorate. [ 17 ] The Gladue author says that the deterioration in her mental health and the increased psychological stress began to "manifest as diminished compassion and difficulty feeling empathy generally and in her role as a police officer specifically." [ 18 ] Constable Browning has been involved in numerous situations in her role as a police officer which involved considerable psychological stress.

Constable Browning, three months before this incident, attended a call where a person jumped to their death from the seventh floor as she approached. [ 19 ] Constable Browning made the following observations to the Gladue author shortly before the incident with Ms. Wang, "She noticed calls (or files), felt like problems to be solved rather than individuals with problems. It felt callous and uncaring and she found it difficult to be concerned about this change to her usual perspective about helping others.

Lacy referred to this as going through the motions and, while she says she did not think about leaving policing, she did know that something needed to change." [ 20 ] Constable Browning expressed insight and remorse for her offending conduct. She admitted to being complacent about the situation, making poor judgments and decisions, and the victim suffered as a result. Constable Browning expressed empathy to Ms. Wang and her circumstances including her vulnerability. She acknowledged that her actions added to the victim’s suffering.

Constable Browning would like to participate in a restorative justice process with the victim, but only if the victim so chooses. She was prepared to apologize personally to the victim at the sentencing hearing. The belief is this process may assist the victim, Constable Browning, and the community in healing from the effects of what occurred. Constable Browning has expressed that she believes she would benefit from a program specific to Indigenous spiritual medicines.

She is hopeful that her efforts to access therapeutic resources will offer the victim some measure of comfort. [ 21 ] Constable Browning, as a result of the public release of the video surveillance, suffered from what is described as a "social media firestorm." This included credible threats of physical harm and death. The firestorm has resulted in Constable Browning suffering from debilitating stress, paranoia, anxiety, medical complications, and depression. She has been prescribed medication to address these issues. The threats were serious enough for her to move to another community.

I am advised that she continues to have an ongoing fear that her life is at risk. [ 22 ] Constable Browning has attended for counselling with Dr. Woodworth, a registered psychologist. Constable Browning has been a patient of his for "many years and dozens of sessions." He says he met with Constable Browning on 45 different occasions since the incident. He says that she would have been diagnosed as suffering from a major depressive disorder earlier this year and prior to being placed on an antidepressant. Dr.

Woodworth says that depression is the primary concern with Constable Browning, but that she also suffers from anxiety which has increased over the last two years. Dr. Woodworth says the incident of January 20 and what has happened since has had a "major impact on her mental health and functioning." [ 23 ] There have been numerous letters of reference filed on behalf of Constable Browning. In

summary, these letters emphasize that the actions of Constable Browning on January 20 were out of character. The letters can be divided into two groups. The first is made up of friends and the second of police officers, many of which worked with Constable Browning. [ 24 ] There are six letters in total from police officers. The most persuasive of the letters comes from Jim de Hoog who was Constable Browning's direct supervisor from 2013 to 2019. In this capacity, he reviewed approximately 5,000 of her investigative reports. He concludes from the reports that Constable Browning displayed a "true empathy for the clients she interacts with." He describes her as a

caring and compassionate individual. He further states that from his review of the reports that her investigations never led him to believe that her physical actions "at any time carried malicious intent." He concluded by saying that he had spoken to Constable Browning about this situation, that she acknowledged her actions were not what they should have been, and that he continued to believe in her "abilities to compassionately and empathetically interact with her clients." [ 25 ] Letters from other police officers talked of the cumulative stress and demands that police officers face.

They emphasize that this one incident is not reflective of who Constable Browning is. One of the writers summarized Constable Browning as follows, "Lacy is strong, dependable, dedicated, and yes, human." One of the officers describes Constable Browning as having a "heart of gold, a highly intelligent mind, and is capable of great introspection." [ 26 ] Many of the officers talked of her dedication to other members and to the community. One of the officers, now retired, worked alongside Constable Browning for a period of one year. He observed her to take a leadership role in high-risk situations.

He says he observed her to jump in to assist victims or members who were actively involved in violent situations and bringing them to a peaceful resolution. He says he did not recall a single incident in which Constable Browning used excessive force during a violent altercation. [ 27 ] Another member had worked with Constable Browning for eight years.

He described her as showing professionalism, compassion, empathy, and the ability to build rapport with both colleagues and clients. [ 28 ] The unit commander for the RCMP dispatch centre referred to how Constable Browning, in the three years since the incident, had shown accountability and compassion for the victim. She describes Constable Browning before this incident as a role model to new members. [ 29 ] In the letters of reference from friends, she is frequently described as reliable, honest, and considerate of others. They advise that the incident is out of character and does not reflect her true nature.

The letters refer to her deep sense of remorse for this incident. They also refer to Constable Browning's belief in the importance of her career as a police officer. [ 30 ] Constable Browning is facing disciplinary action by the RCMP for this incident. I am advised that, as a result of this action, she has suffered financially as she has not been able to work overtime or extra shifts. The discipline hearing can proceed by way of a code of conduct hearing or meeting. It is unclear as to how the police will proceed. A hearing only occurs if the police are seeking the dismissal of the officer.

I am advised that the use of force does not necessarily end the career of an officer. Law [ 31 ] The Crown and defence have both provided lengthy casebooks setting out legal principles and decisions involving the sentencing of a police officer. It is not my intention to summarize each of these cases, but rather to refer to those which were of most assistance in crafting a fit and proper sentence. [ 32 ] I will start with setting out the purpose and principles of sentencing relevant to this matter as found in s. 718 to 718.2 of the Criminal Code .

Section 718 sets out the purpose of sentencing as follows: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance 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 and the harm done to victims or to the community that is caused by 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 or to the community. [ 33 ] The fundamental principle of sentencing is it must be proportionate to the gravity of the offence and the degree of responsibility of the offender (see s. 718.1). [ 34 ] A court must consider any mitigating or aggravating circumstances, some of which are statutorily identified in the Code . Relevant to my decision in this matter are the following: 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, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation … 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 …

(

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 and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [35] I find that s. 718.04 applies to the matter before me due to the circumstances of the victim at the time of the offence.

This sectionstates the following: When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances— including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciationand deterrence of the conduct that forms the basis of the offence. [36] The Crown relies on the decision of R. v.

Cusack, (N.S.C.A.), for the principle that, because police officersare in a position of trust and authority, the sentence of a police officer's criminal conduct must be greater than the sentence of a personwho is not a police officer. [37] In R. v. Harper, [1980] B.C.J. No. 722, the British Columbia Court of Appeal allowed a Crown appeal of a conditional dischargeand imposed a 30-day custodial sentence. The offender was a police officer who, after trial, was convicted of an assault causing bodilyharm.

The officer asked the victim to get into the police vehicle and, when he refused, the officer struck him three to four times,knocking out a tooth and bruising the face and neck. Macdonald J.A. found that a conditional discharge "is unlikely to deter other policeofficers from assault." [38] In R. v. Canada (Royal Canadian Mounted Police), [1981] B.C.J. No. 856, the offender, a police officer, appealed a sentence ofthree months for an assault causing bodily harm. The appeal was denied by a majority of the panel. The offender was found to havekicked a prisoner in the face fracturing the prisoner's cheekbone.

The victim at the time of the offence was on the ground, no threat toothers, and defenceless. Seaton J.A. for the majority referred to the principle noted above in the decision of Cusack. Seaton J.A. statedthe following: When a policeman assaults a prisoner, he commits a serious crime against the prisoner and a serious crime against the justice system. Ithink that the trial Judge was right when he treated this matter as a grave one. [Paragraph 18] [39] In R. v.

Cronmiller et al, 2004 BCPC 1 , 2004 BCPC 0001, the court imposed a sentence on six different police officerswho had entered guilty pleas to three counts of assault. The three victims of the assault were arrested on the Granville Mall in Vancouverand driven to a secluded area of Stanley Park where they were assaulted. The positions of the Crown and defence were similar to thematter before me. The Honourable Judge Weitzel made a distinction between cases where officers had acted in a "heat of the momentsituation" and those which did not.

In the former, he found judges generally imposed lighter sentences including discharges. JudgeWeitzel said a "heat of the moment situation" could occur during a struggle, during a lawful arrest, or when an officer is set upon by anunruly person. [40] Judge Weitzel distinguished between the offenders as a result of his findings on their moral culpability. The sentences includedan absolute and conditional discharge, suspended sentences, and conditional sentence orders.

The different sentences were based on thecircumstances of each offence, the role of the offender in the offence, and the offender's personal circumstances. [41] In R. v. Langlois, 2004 BCPC 195 , 2004 BCPC 0195, the Honourable Judge Bagnall convicted the offender of anassault. The offender was a member of the RCMP and the offence occurred in the line of duty. Briefly, the circumstances of the offencewere that, as the victim was leaving the police detachment, he yelled an obscenity to the officer. The officer responded by grabbing,dragging in a headlock, and ultimately choking the victim.

Judge Bagnall in her decision said the following: … where a police officer assaults a member of the public while on duty, the previous good conduct of the offender ought to be givensomewhat less weight than in other sorts of cases. The officer holds the trust of his community every time he goes to work.

Primary inthat trust is that the officer will not himself break the law. … The community expects police officers not to mistreat citizens in theircustody or in their contact, and in my view would wish such conduct firmly denounced by a sentencing judge. [Paragraph 23] [42] The sentence imposed was a 21-day conditional sentence order. [43] In R. v. Lepine, 2010 ABPC 374, the court imposed a conditional sentence order of four months for an assault. The offender wasa police officer and the offence occurred in the course of his duties. The circumstances, briefly, were that the victim was extremelyintoxicated.

He was arrested and taken to the police detachment where the offender first became involved. [44] In the course of booking the victim into custody, the offender pulled the victim from the police vehicle and threw him to theground striking his head, dragged the victim by his leg to the door of the detachment and then to a waiting area, placed his foot on theright buttock of the victim, pushed the victim in the back and head with his foot, forcefully pushed his head towards and onto a bench,dragged the victim from the waiting area into the cell corridor and into the cell proper, striking the door jamb with the victim's body, andthen threw the victim into the cell wall.

Mitigating factors are similar to those before me. [45] In Lepine, the court held that stigmatization through publicity could be taken into account as a mitigating factor when there was"significant publicity or the effect of that publicity on the offender is inordinate" (para. 30). The court was not provided with evidence ofthe media comment, but was nonetheless satisfied that the public comment had embarrassed the offender.

The court found that the needfor denunciation had been furthered by the media comment and, as a result, the sentence ought to be mitigated "to some extent." Thecourt accepted that there were cases in which police officers commit criminal offences and the appropriate sentence is a discharge. Thecourt concluded, however, that the facts of the cases were significantly different than the circumstances in Lepine. [46] The Crown and defence relied on the recent decision of the Honourable Justice Marchand in R. v. Kehoe, 2023 BCCA 2. In this

decision, Justice Marchand provides a clear and succinct

summary of the applicable sentencing principles to Indigenous offenders. [47] The defence has provided to me a total of 22 decisions. The cases highlight that the courts found that a discharge is a fit andproper sentence in numerous situations in which a police officer commits a criminal offence. Many of the cases where conditionaldischarges were imposed included as part of the sentence significant community work service to repay the community for harm done.

Itis not my intention to summarize all of the cases provided by the defence, but to highlight when a discharge has been imposed orrejected. [48] I find the Honourable Judge Werier's decision in R. v. Klassen, 2011 BCPC 109 , is a good starting point, setting outsome general legal principles to be applied. She notes that, while case decisions can be instructive, each case must be decided on its ownfacts. She found that the paramount sentencing principles are deterrence and denunciation when sentencing a police officer.

She followsthe decision in Cusack that a sentence for a police officer is generally more severe than that of an ordinary person due to the breach oftrust. She found, upon a review of the cases in this area, that in situations where the officer commits an assault in the course of theirduties by reacting in the heat of the moment or as a result of provocation by the victim, courts have generally imposed lighter sentencesincluding discharges. [49] In R. v. Baxter, 2018 ONCJ 608, the officer was found guilty of assault causing bodily harm during the lawful arrest of thevictim.

The offence occurred when the officer grabbed the victim and pushed him up face first and sideways against and along a fenceand then took him to the ground causing a "nasty gash" to his face. The court imposed a conditional discharge with 200 hours ofcommunity service. The court held that the sentence satisfied the principles of deterrence, denunciation, rehabilitation, reparations, and asense of responsibility in the offender (paragraph 40). [50] In R. v.

Briegel, 2016 ABPC 194, the offending police officer, in responding to a report of a drunken male, pulled the victim intoa sitting position and struck him three times in the face. The assault caused the victim to suffer a complex eye socket fracture whichrequired surgical intervention. A conditional discharge was imposed with 120 hours of community service. [51] In R. v. Diaz-Rodriguez, June 24, 2016, Vancouver, 237158-1, B.C.P.C., the offending police officer entered a guilty plea to anassault causing bodily harm.

The offender, during the arrest of the victims, struck the victim 10 times with his baton in the back, neck,and head area resulting in injuries including a long laceration to the head. The Honourable Judge Bahen concluded that a conditionaldischarge in the circumstances of the offence and the offender was not appropriate as it did not satisfy the need for denunciation. Asuspended sentence was imposed. [52] R. v. Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.), is an often-cited and leading case on when adischarge is appropriate.

The court set out eight factors to be considered by a court in determining whether a discharge could be imposed.The court must find that a discharge is in the best interests of the accused and that it is not contrary to the public interest. In addressingthese two requirements, the court said as follows:

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that itis not necessary 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.

(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. [53] In the decision of R. v. Gill, unreported, October 27, 2021, Vancouver File Number 262674-1, B.C.P.C., the court found that theofficer slapped the victim in the face when the officer became frustrated and, to a lesser degree, angry. The victim lied to the officertelling him he did not have anything sharp in his pockets. The officer, upon the search of the victim, found a needle.

The court imposed aconditional discharge with 50 community work service hours. [54] In the case of R. v. Kirby, 2021 MBPC 50, the court referred to a distinction of Justice Pomerance in R. v. Doering, 2020 ONSC5618, at paragraph 30, which I find instructive: As with all groups of individuals, the crimes committed by police cover a broad range of conduct, with varying degrees of moralblameworthiness. Moral culpability is high when the crime involves a deliberate leap into criminality, such as when an officer decides tosell drugs, or steal money, or share confidential information.

Moral culpability is lower when the crime committed by an officer isincidental to the discharge of a duty related to public safety. … (cited … [from] from R. v. Letkeman, 2021 MBCA 68 at para. 39) Analysis and Decision [55] The issue to be determined by this court is the fit and proper sentence when considering the relevant sentencing principles,circumstances of the offence, and circumstances of the offender.

In making this determination, the court must weigh both the mitigatingand aggravating factors present. [56] Counsel for the Crown, as noted above, argues that a custodial sentence is required, but that it can be served in the community byway of a conditional sentence order. This requires the court to find, firstly, that a custodial sentence is appropriate. The defence arguesfor a conditional discharge. The court also has the option of sentencing Constable Browning to a suspended sentence. [57] At the outset, I find this case differs from many of the decisions provided to me.

This is not a situation where an officer hasreacted in the heat of the moment or as a result of a provocation by the victim. In those cases, discharges are often granted. It is also not,however, a situation in which Constable Browning made a plan to act in a criminal manner. This latter set of cases often results inofficers receiving a custodial sentence. I also note that many of the cases that counsel has provided in which discharges were imposedinvolved a significantly greater degree of excessive force than applied by Constable Browning.

The greater use of force in those othercases, however, did not involve circumstances involving a victim in a mental health crisis.

[ 58 ] The admission of fact describes what I consider two different sets of actions that constitute the assault. The first is the dragging of Ms. Wang from her apartment to the elevator and then from the elevator to the front lobby. I find that Constable Browning, in dragging Ms. Wang, was trying to solve a problem. Constable Browning was on her own and she needed to get Ms. Wang to the lobby door of her apartment. Ms. Wang appears to have been unconscious or unable to walk and, therefore, to assist in this movement. Constable Browning was faced with a dilemma. On the one hand, she needed assistance to move Ms.

Wang, but on the other hand, she needed to open the door to the front of the building to allow entry of this assistance. Constable Browning also knew that she could not leave Ms. Wang in her apartment to attend the front door as Ms. Wang was in a mental health crisis. It was in these circumstances that Constable Browning made a conscious decision to use excessive force to drag Ms. Wang to the front door. [ 59 ] The more concerning aspect of Constable Browning's actions is what I consider the second part of the assault. The second part of the assault occurs when Constable Browning and Ms.

Wang were at the front door of the lobby waiting for EHS to arrive. There are two elements to the second part. Ms. Wang is seen at one point to be raising her head off the floor. Constable Browning for no apparent reason pushed Ms. Wang's head back down with the bottom of her boot. The degree of force used was excessive in the circumstances. There is no apparent need for Constable Browning to do this. I conclude from reviewing the video, however, that it does not appear Constable Browning was attempting to inflict any injury to Ms.

Wang at this time. [ 60 ] The next element of the second part of the assault occurs when Constable Browning picks Ms. Wang's head up by the hair and lifts her head off the floor. Constable Browning then is seen leaning over to speak to Ms. Wang and returning her head to the floor. There, again, is no apparent reason for Constable Browning to act in this manner.

The degree of force used was excessive in the circumstances. [ 61 ] I must consider that this is a situation in which Constable Browning acted with excessive force in the discharge of her duties and in response to a report of a person in a mental health crisis. It is aggravating that she used excessive force on a vulnerable person. In these circumstances, the court must give primary consideration to the objectives of denunciation and deterrence (see s. 718.04). [ 62 ] Crown argues, and I agree, that the offence appears to have had a significant impact on the victim.

I find that the emotional impact has been greatest as the evidence is the physical injuries were relatively minor. [ 63 ] The defence argues, conversely, that Constable Browning's actions probably saved the victim's life. I find that Constable Browning's attendance to Ms. Wang may have saved her life, but the offending conduct did not and was detrimental to her mental health. [ 64 ] I must also consider the personal circumstances of Constable Browning. This includes the significant Gladue factors outlined above and the difficulties that she was going through at the time of the offence.

I find that these factors reduce the moral culpability of Constable Browning. [ 65 ] I must consider the rehabilitative steps Constable Browning has taken to address the underlying causes of her actions on that day. I accept that Constable Browning is extremely remorseful for her actions. Constable Browning has shown insight by acknowledging the negative impact that her actions had on the victim, the RCMP, and the community.

These steps and the insight that she has shown has, to a large degree, addressed the objectives of sentencing assisting with the offender's rehabilitation, promoting responsibility in the offender, and acknowledging the harm she has done to the victim and the community. [ 66 ] Deterrence and denunciation are the primary sentencing objectives in offences such as this. I find that Constable Browning has been specifically deterred by being charged with this offence, the criminal process that followed, the effect it had on her career, and the public outcry.

I also find that these circumstances will deter others and specifically other officers who find themselves responding to a person in a mental health crisis. [ 67 ] I find, as did the court in Lepine , that stigmatization through publicity should be taken into account as a mitigating factor when the publicity is significant or the effect of that publicity on the offender is inordinate. I find these factors are present in the matter before me and to a much greater degree than in Lepine . In the case before me, there was a social media firestorm that resulted in credible threats of harm to Constable Browning.

I find that this has a deterrent effect on Constable Browning and any other officer responding to a mental health crisis. [ 68 ] I consider it mitigating that the letters of reference clearly set out that this is a situation that is out of character for the officer. She is highly considered by her colleagues and friends and has responded to many incidents where excessive force was not used. She is considered a caring and considerate officer. [ 69 ] It is mitigating that Constable Browning has entered a guilty plea in this matter.

That is significant as it saved court time, but more importantly, it saved the victim from testifying in this matter. [ 70 ] It is aggravating that Constable Browning was in a position of trust and authority when this offence was committed. As noted above, the caselaw clearly sets out that in these circumstances the sentence for a police officer must be greater than a person who is not. [ 71 ] The moral culpability of Constable Browning must be assessed considering her actions, her own personal circumstances at the time of the offence, and the Gladue factors which I have referred to above.

The range of moral culpability can be from low to high. I find Constable Browning's offending conduct falls in the middle of the range of moral culpability. [ 72 ] I have weighed the considerations listed above in determining the fit and proper sentence in this matter. I find that, in all of the circumstances and considering the sentencing principles I have identified, including the decisions of other courts, that a custodial sentence is not required.

I am satisfied that the sentencing principles can be addressed by a non-custodial sentence. [ 73 ] This should not be seen as condoning Constable Browning's treatment of Ms. Wang. Constable Browning's actions were criminal and highly inappropriate in her arrest of Ms. Wang under the Mental Health Act . Her actions highlight what should not occur when a police officer is responding to a person in a mental health crisis.

It is to Constable Browning's credit, however, that she has taken responsibility for this offence by entering this guilty plea, expressing insight, and acknowledgment that she acted inappropriately and the

negative consequences this has had on Ms. Wang. [ 74 ] The court must still consider the issue of whether the fit and proper sentence is one of a discharge or a suspended sentence. The court must apply the test found in R. v. Fallofield in this assessment. I find it is clearly in the best interests of Constable Browning for a discharge. I agree with defence counsel that the issue is whether a discharge is not contrary to the public interest. The public has an interest in ensuring that a sentence is fit and proper when all considerations are weighed.

The question is whether a discharge satisfies the sentencing principles including the primary goal of deterrence and denunciation, or is a suspended sentence with the resulting criminal record required. [ 75 ] I am satisfied that a discharge on the terms I intend on imposing can satisfy the sentencing principles including the primary need for deterrence and denunciation and is not contrary to the public interest. These terms will include significant community work service hours. As noted previously, this is a term often included in sentencing of police officers.

This will provide reparation and promote a sense of responsibility and acknowledgment of the harm done by Constable Browning to the community. [ 76 ] As noted, there will be a conditional discharge. It will be for a period of two years. The terms of that conditional discharge will be as follows. [ 77 ] 2001, you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or your probation officer in advance of any change of name or address and promptly notify the court or the officer of any change of employment or occupation. [ 78 ] 2002, you must have no contact or communication directly or indirectly with Mona Wang, unless allowed for by your probation officer and only for the purposes of participating in a restorative justice process or in providing an apology to Ms.

Wang. [ 79 ] 2101, you must report in person to a probation officer at Kelowna, B.C., by 3:00 p.m. tomorrow and, after that, you must report as directed by your probation officer. [ 80 ] 2106, your reporting ends when you have satisfied your probation officer that you have completed all your community service work, completed any apology if such is imposed, and your officer has told you that you are no longer required to report. [ 81 ] 2202, when first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your phone number if you have one.

You must not change them without notifying your probation officer in advance. [ 82 ] 2501, you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer. This may include counselling or programming for mental health and trauma recovery. [ 83 ] 2509, you must complete 160 hours of community work under the direction of your probation officer.

Your community work service must be completed by no later -- I will give you one year to do that, so by no later than August 28, 2024. [ 84 ] Any concern with those terms and conditions? [ 85 ] CNSL D. BUTCHER: I have none. [ 86 ] CNSL K. MARKS: No, nothing with the conditions. Does Your Honour need to deal with the victim surcharge as well as a DNA order, it if is appropriate or not? [ 87 ] THE COURT: What is your position on the -- I think it is a secondary designated -- [ 88 ] CNSL D. BUTCHER: Yes -- [ 89 ] THE COURT: -- offence. [ 90 ] CNSL D.

BUTCHER: -- and I would say that's just completely unnecessary in this case and I have no real submissions with respect to the victim fine surcharge. [ 91 ] THE COURT: There will be a victim fine surcharge. Am I correct that that can be paid immediately? [ 92 ] CNSL D. BUTCHER: It depends how it can be paid. [ 93 ] THE COURT: It can be paid to the court registry. [ 94 ] CNSL D. BUTCHER: And if they take a credit card, I am sure. [ 95 ] THE COURT: I do not know about that. [ 96 ] THE CLERK: No, it's just debit or cash. [ 97 ] THE COURT: Debit or cash. [ 98 ] CNSL D.

BUTCHER: Yes, I think that's -- [ 99 ] THE COURT: Okay. [ 100 ] CNSL D. BUTCHER: -- quite feasible to --

[ 101 ] THE COURT: Okay. [ 102 ] With respect to the DNA on a secondary designated offence, there are three things I need to consider. One is the circumstances of the offender and, secondly, the circumstances of the offence and, finally, the breach of the privacy rights by the taking of such a sample. At the end of the day, the test that the court must look at is whether the taking of the sample is in the best interests of the administration of justice or whether it is not needed. In the circumstances, I certainly look at this as being out of character for Constable Browning.

She comes before this court with a clean record. I take into consideration the circumstances of the offence. I also take into consideration the caselaw in this area which certainly generally will impose this type of order, but I find that, in all of the circumstances, it is not necessary for the administration of justice to order such a sample. So I am not going to. [ 103 ] Constable Browning, if you could just stand up, please?

Do you understand the conditions that I have placed you on? [ 104 ] THE ACCUSED: Yes, I do, Your Honour. [ 105 ] THE COURT: You understand if you breach any of those terms, you could be charged with a new offence and, if found guilty, you could be facing jail time? [ 106 ] THE ACCUSED: Yes, I do. [ 107 ] THE COURT: On that basis, I am not going to require that you sign the probation order. I would suggest that you get a copy of that. You probably can do that by the end of today from the registry or from your probation officer that you will see tomorrow, okay? [ 108 ] THE ACCUSED: Thank you. (REASONS CONCLUDED)