R. v. Sood, 2019 BCPC 82

Citation: R. v. Sood 2019 BCPC 82 Date: 20190425 File No: 99557-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEEPAK KUMAR SOOD REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: H. Magnin Counsel for the Defendant: C. Hatcher Place of Hearing: Port Coquitlam , B.C. Date of Hearing: April 9, 2019 Date of Judgment: April 25, 2019 INTRODUCTION

[ 1 ] Count 1 of Information 99557-1 alleges that on January 6, 2018, at or near Coquitlam, British Columbia, Deepak Kumar Sood (“Mr. Sood”) uttered threats to cause death or bodily harm to Gert Knudsen (“Mr. Knudsen”), contrary to s. 264.1(1) (

a) of the Criminal Code . The Crown proceeded summarily against Mr. Sood on that charge and on March 20, 2019, following a trial conducted on January 30-31, 2019, he was convicted. Accordingly, Mr. Sood is now before the court for sentencing. [ 2 ] The offence of uttering threats to cause death or bodily harm is a hybrid one and it carries a maximum sentence upon

summary conviction of 18 months imprisonment. There is no minimum. [ 3 ] The Crown submits that the court in this case should suspend the passing of sentence upon Mr. Sood pursuant to s. 731(1) (

a) of the Criminal Code and place him on probation for between six and 12 months, with conditions that include counselling for anger management and community work service. Through his counsel, Mr. Sood takes the contrary position that he should be conditionally discharged pursuant to s. 730 on essentially the same terms. [ 4 ] Even if Mr. Sood were to comply fully with all of his probationary conditions, a suspended sentence would leave him with a criminal record. By contrast, full compliance with probationary conditions imposed pursuant to a conditional discharge would result in Mr.

Sood’s discharge being perfected, leaving him without a criminal record. It is mainly that important difference between the long- term consequences of conviction that animates the contrasting arguments advanced by counsel as to what would, in all the circumstances, constitute a just and fit sentence for Mr. Sood. [ 5 ] Certain threshold requirements must be met before either a suspended sentence or a conditional discharge may be considered as sentencing options for any offender.

For example, a suspended sentence is only available for sanctioning those who have committed offences for which the Criminal Code does not impose a statutory minimum sentence. Similarly, a conditional discharge is only available where the offender is not an organisation, and the offence he or she committed does not carry either a statutory minimum sentence or a maximum sentence of 14 years or life. [ 6 ] Crown and defence counsel agree that, having regard to those threshold requirements, both a suspended sentence and a conditional discharge are sanctions that could be imposed upon Mr.

Sood for uttering threats to cause death or bodily harm to Mr. Knudsen. However, counsel disagree sharply with respect to other requirements prescribed by the Criminal Code in this regard. As will be seen in these Reasons for Sentence, their disagreement centres mainly upon the language in s. 730(1) that limits the imposition of a conditional discharge to circumstances where it would “not [be] contrary to the public interest” to do so. CIRCUMSTANCES OF THE OFFENCE [ 7 ] The circumstances surrounding the commission, by Mr. Sood, of the offence of uttering threats to cause death or bodily harm to Mr.

Knudsen are fully set out in my Reasons for Judgment on conviction (the “Reasons on Conviction”), indexed at 2019 BCPC 44 , [2019] B.C.J. No. 440 (Prov. Ct.) . Consequently, only a brief

summary need be given here. [ 8 ] Mr. Sood is a constable with the Vancouver Police Department. The events giving rise to the charge of which he was ultimately convicted occurred when he was off duty. [ 9 ] In November of 2017, Mr. Sood purchased a number of items of furniture from a furniture retailer (“M&M”) of which Mr. Knudsen is the principal. One of those items was a dresser (the “Dresser”) for his, then, four-year-old son. Due to a misunderstanding between Mr.

Sood and M&M as to whose responsibility it was to anchor the Dresser to an adjacent wall to stabilise it and safeguard it against tipping, no anchoring mechanism was installed at the time of delivery. Some weeks later, on Saturday, January 6, 2018, with all six of its drawers having been pulled open, the Dresser tipped forward at a 45 degree angle. One of the drawers came to rest on Mr.

Sood’s four-year-old son’s foot, in effect pinning him in place and causing him great upset (though no serious harm). [ 10 ] After righting the Dresser and freeing his son’s foot from under the drawer that had come to rest upon it, Mr. Sood came to the conclusion that it was essential that M&M retrieve the Dresser from his home straightaway. He then commenced making telephone calls to M&M, insisting that it send one of its delivery trucks to his home that day (a Saturday) to take the Dresser back to the store.

Inquiries conducted by M&M representatives determined that the first day that the return could be done was the following Monday. When that proposed resolution to his complaint was explained to Mr. Sood, he considered it to be entirely unsatisfactory. Over the course, then, of what Mr. Sood himself admitted could have been as many as 25 calls, he pressed M&M representatives relentlessly and more and more forcefully for same-day pick-up of the Dresser. He did so despite having been told that M&M’s delivery trucks were fully subscribed and that the earliest the pick-up could occur was the following Monday.

As his frustration at not getting the result he was demanding grew, his language with M&M representatives “ degenerated into a loud and angry fusillade of profanities and intensifying demands” (see Reasons on Conviction, para. 23). [ 11 ] Among other things, over the course of a tirade that went on for a period of hours, Mr. Sood threatened to bring the Dresser back down to the M&M store and throw it through its front window. More importantly, Mr. Sood also threatened to “bash [Mr. Knudsen’s] fucking head in.” When Mr.

Knudsen cautioned him that he would have to call the police if such threats were to continue, Mr. Sood replied by identifying himself as a policeman, stating “Don’t bother, I am the fucking police.” [ 12 ] Again, a much more detailed outline of the circumstances of the subject offence is provided in paras. 36-89 of the Reasons on Conviction, which paragraphs I incorporate by reference into these Reasons for Sentence. EFFECT OF THE OFFENCE ON THE VICTIM [ 13 ] Mr. Knudsen prepared a Victim Impact Statement that was filed as Exhibit 1 on Mr. Sood’s sentencing.

In it, he refers to both the immediate and the persisting effects of having been threatened with death or bodily harm by Mr. Sood. He makes reference to the genuine fear he had for himself and his staff, given that Mr. Sood’s threats “seemed credible and very real.” [ 14 ] The situation that unfolded on January 6, 2018, was a truly unique one in Mr. Knudsen’s experience. He explains that, having functioned for over 40 years in the retail business, he has (of course) had to deal with his share of rude and belligerent customers.

However: “… the interaction with Mr. Sood stands out, as I have never had my life threatened by somebody who was clearly out of control and whose threats to my safety seemed so credible.” [ 15 ] Mr. Knudsen is also troubled by the fact that media exposure given to the incident with Mr. Sood might cause some members of the public to think that M&M in some way bears negative attitudes toward the police.

Further, he explained in his Victim Impact Statement that he has been left by the incident with lingering concerns that having become involved in an adversarial encounter with a police officer might give rise to unwarranted trouble for him and his business in their future dealings with law enforcement: “… Confirmation that he was an officer caused me further anxiety, as my imagination ran while [ sic ] with how Mr. Sood may use his influence and potential connections with law-enforcement; To that end, I had a nightmare where Mr. Sood was coming to make good on his threats.

Despite knowing that I have been honest about the incident, it seems possible that colleagues and friends of Mr. Sood may believe him over me. While I have faith in the legal system and the many good officers in law enforcement, Mr. Sood’s behaviour has left room for doubt and has impacted my overall sense of safety and security.” CIRCUMSTANCES OF THE OFFENDER [ 16 ] Mr. Sood is, as has been noted, a constable in the employ of the Vancouver Police Department. He is married with two young children and will soon turn 36.

During his childhood he periodically moved back and forth between Canada and India and, consequently, he is a fluent speaker of English, Hindi and Punjabi. [ 17 ] As to education, following his graduation from high school Mr. Sood attended Kwantlen College for two years and then continued on to Simon Fraser University where he earned an undergraduate degree in criminology. After that he took police training and joined the Vancouver Police Department in 2009 at the age of 25. [ 18 ] Mr. Sood comes before the court with no criminal record. [ 19 ] Mr.

Sood also has an unblemished workplace record as a member of the Vancouver Police Department. He has been given increasingly responsible positions and assignments there, some involving secondments to the RCMP. Since 2018 he has been part of the Beat Enforcement Team in the Downtown Eastside where, as is generally known, the challenges are extraordinary and call for a particularly sensitive and empathetic kind of police work. To all accounts, Mr. Sood has performed that difficult work in an exemplary way. [ 20 ] Mr.

Sood has shown over the years a willingness to become actively involved in a voluntary capacity with his broader community. His contributions in that regard, and the general esteem in which he is held by friends, family and colleagues, have been acknowledged in the character reference letters that were placed before the court and marked as Exhibit 2 at his sentencing. [ 21 ] Mr. Sood’s parents are still alive and he has five siblings. Several of his family members, extended family members and friends —some with their spouses—attended at his sentencing hearing to show their support for him at a difficult time.

Some of those who could not do so filed letters. FACTORS IN MITIGATION OF SENTENCE [ 22 ] Mr. Sood comes before the court with no previous criminal history, and no criminal record. This is a factor to his credit that operates in mitigation of sentence and I treat it as such. [ 23 ] As I have noted above, Exhibit 2 on this sentencing consists of numerous letters written by Mr. Sood’s friends, family and colleagues, attesting to his good character. In another case that evidence might well have had a more powerful mitigating effect. However, because Mr. Sood is a police officer, its mitigating force is reduced.

As Fratkin P.C.J. stated in R. v. Bal , [2013] B.C.J. No. 237 (Prov. Ct.) : “The accused may be a man of good character, however as Bagnall J. said in R v. Langlois , 2004 BCPC 195 , the fact that an accused has got a good character got him his job in the first place. In committing a breach of trust, the person of previous good character should not be able to rely on that reputation in mitigation of sentence.” (at para. 20) [ 24 ] I understand that Mr. Sood has cooperated with authorities in the wake of the charge having been brought against him in connection with his threat to cause death or bodily harm to Mr.

Knudsen. I have not, for example, been informed of any breaches of any conditions that have bound him since charges were approved. That pattern of lawful cooperation throughout the period leading up to sentencing operates in mitigation of sentence. [ 25 ] Where an offender takes proactive steps, prior to sentence, to address underlying criminogenic problems and thereby limit the likelihood of future offending, the taking of those steps is considered mitigating at law.

This factor is related to the issue of the offender’s insight into the causes of his or her own offending and into the steps he or she might take to make it less likely that that offending will be repeated. [ 26 ] On the submissions of his counsel, Mr. Sood has been introspecting deeply since January 6, 2018, and taking careful stock of his conduct on that day. I also understand that he has done at least some investigation into resources that might assist him in maintaining better control of his temper at times of stress and upset.

However, as his counsel explained, he has yet to take any concrete steps in that direction; rather, as I understand it, he is waiting to see what is made available to him pursuant to a counselling provision in the probation order that will eventually be made against him. Mr. Sood expresses an intention to take the full benefit of that counselling in his efforts then to move on past the unhappy events of January 6, 2018, once the sentencing process has run its course. [ 27 ] Certainly, as can be seen, Mr. Sood has conveyed to the court that he has some measure of insight regarding his own offending.

As such he is entitled to have that recognised under the rubric of mitigation. However, I consider that the mitigating force of that insightis attenuated by the fact that he yet to take any concrete steps to, for example, begin sessions with a counsellor or psychologist to helphim: (

a) come to a better understanding of why he would respond to a situation like the one that arose on January 6, 2018, in such adisproportionate way; and (

b) develop strategies to deal with stresses and disappointments so as to prevent himself, in the future, from becoming as whollyunhinged as he became when he was not able to get the resolution to the problem with the Dresser that he wanted from M&M. [28] Recall that, at trial—while still maintaining that he did not utter any threats to anyone—Mr. Sood nevertheless used veryunflattering words to describe his own conduct toward Mr. Knudsen and various other M&M representatives. As I noted at para. 5 of theReasons on Conviction: “When speaking with M&M representatives Mr.

Sood employed a very aggressive tone and a great deal of foul and profane language.Indeed, he volunteered more than once when giving defence evidence that he behaved ‘like an asshole’ (his words) toward the M&Mrepresentatives to whom he spoke over the course of the afternoon.” [29] And, similarly, quoting from para. 73: “…Quite apart from the alleged threats he is alleged to have made, the picture of Mr. Sood's prolonged succession of abusive telephonecalls that emerges from the testimony of Crown witnesses and from Mr. Sood himself presents a picture of a man in the grip of anunstoppable and uncontrollable rage.

Importantly, Mr. Sood agreed with Crown counsel, when she put to him during cross-examination,that ‘his behaviour was threatening, even if we disagree about your words’. The evidence as a whole and that damaging admission abouthis behaviour on January 6, 2018 thus belies his contention that, as distinct from having lost his grip, he in fact retained throughoutenough of a cool head to exercise the self-control needed to regulate his own behaviour so as effectively to keep it within legal limits.” [30] So, yes—insight is discernible in the evidence on sentencing in this case and Mr.

Sood is entitled to have me recognise it asmitigating. But its mitigating force is limited for the reasons I have given. [31] Expressions of remorse, if they are made sincerely, will generally be treated as being of mitigating significance at the time ofsentencing. I do acknowledge the expressions of remorse that Mr. Sood made through counsel and in his own voice about the effects ofhis actions on Mr. Knudsen and others at M&M. They impressed me as being genuine.

However, the mitigating force of suchexpressions is either non-existent or greatly lessened in cases involving offenders who are police officers: see R. v. Robinson, 2012BCSC 1184 at para. 23. [32] Mr. Sood has already experienced public opprobrium as a result of the media attention that has been given to his conviction foruttering threats to cause death or bodily harm to Mr. Knudsen.

It is reasonable to anticipate that more such negative media attention willfollow upon the imposition of his sentence. [33] Adverse media attention is sometimes cited as an extrajudicial consequence for criminal misconduct that can be seen to intersectwith, and bear to some degree upon, what is intended by sentencing objectives such as denunciation and specific deterrence: see, forexample, R. v. Bunn, 2000 SCC 9. However, upon the binding authority of R. v. Ralph, [2014] B.C.J.

No. 485 at paras. 48-51 (S.C.), thepublic opprobrium that can result from the adverse publicity an offender may experience in the wake of a criminal conviction does notoperate in mitigation of sentence in British Columbia. [34] Quite apart from facing criminal sentencing as a result of his conviction, Mr. Sood also faces potential disciplinary sanctionsunder the Police Act and its associated Regulations. Whether such sanctions will indeed be imposed, and if so what they will be, cannot(of course) yet be known. I must not, therefore, indulge in speculation about such sanctions in my sentencing calculus for Mr.

Sood.However, even if I could permissibly speculate in that regard, there is authority for the proposition that external sanctions should, in thecircumstances of individual cases, operate little, if at all, in mitigation of sentence: see, for example, R. v. Lepine, 2010 ABPC 374, [2010] A.J. No. 1344 at paras. 25-28 (Prov. Ct.) and R. v. D.W., [2014] B.C.J. No. 822 at paras. 34-36 (Prov. Ct.). [35] Finally under this heading, I pause to note that much was made in the course of defence submissions of the fact that on theoffence date Mr.

Sood was very emotional, owing to his upset at the frightened response of his frightened child caused by the tipping ofthe Dresser. While I do not doubt that that situation did indeed cause him emotional upset, it is not open to Mr. Sood to contend that heacted reflexively, or impulsively or in the “heat of the moment” in response to an upsetting incident involving his son, and that thatshould therefore operate in his favour as a factor in mitigation of sentence. [36] That argument is simply unavailable to Mr. Sood on the facts of the case at bar. The threat he made to “bash [Mr.

Knudsen’s]fucking head in” came in the course of a prolonged and relentless campaign of intimidation that covered a period of hours—a campaignthat Mr. Sood himself agreed consisted of up to 25 telephone calls during which, quite apart from using specific, threatening words, hebehaved “like an asshole” (his words) toward M&M representatives and engaged generally in behaviour that even he admitted wasthreatening. The threat Mr. Sood made to Mr. Knudsen cannot be divorced from that context. FACTORS IN AGGRAVATION OF SENTENCE [37]

Section 718.2(a)(iii) of the Criminal Code provides that where an offender, in committing an offence, abuses a position of trustor authority in relation to a victim, that abuse of trust or authority stands in aggravation of sentence. The trust and authority relationshipthat exists between police officers and the public they serve is a relationship that fits squarely within the ambit of s. 718.2(a)(iii): see, forexample, Robinson at para. 22 and R. v. Devic, [2018] B.C.J. No. 3434 at paras. 43 and 46-47 (Prov. Ct.). Recall that when Mr.Knudsen cautioned Mr.

Sood on January 6, 2018, that if his threatening behaviours continued he would have to report the matter to thepolice, Mr. Sood responded “Don’t bother, I am the fucking police.” That, clearly, was

an act of intimidation and a misuse by Mr. Soodof his status and authority as a police officer to serve a private end. He wanted M&M to bend to his will and retrieve the Dresser from his

home that day and he did not hesitate to invoke his status and authority to improve the chances that M&M would do so. No other—and, perforce, no legitimate —purpose for Mr. Sood’s reference to himself as a police officer can be recognised in any of the evidence adduced at trial. I shall have more to add on this subject below when discussing the question of whether it would be contrary to the public interest for the court to discharge Mr. Sood. Suffice it to say, for now, that I am satisfied that s. 718.2(a)(iii), as a statutory factor in aggravation of sentence, is fully engaged by Mr.

Sood’s conduct on January 6, 2018. [ 38 ] At common law, it is recognised that where an offence involves planning and pre-meditation, that fact can be aggravating for the purpose of sentencing. On the facts as found in the Reasons on Conviction, Mr. Sood conducted a very deliberate campaign over an extended period to extract the concession he was seeking from M&M—namely, that the company dispatch a delivery truck to his home straightaway, pick up the Dresser and take it back to the store. [1] He was darkly purposeful in his efforts.

He called repeatedly, telling M&M representatives that they might just as well close up the store for the day because he was going to keep on calling until he got his way. He “upped the ante” as it were by including threats that if M&M did not yield to his wishes he would come down to the store himself and: (

a) throw the Dresser through the store’s window; and/or (b) “bash [Mr. Knudsen’s] fucking head in.” [ 39 ] There were many opportunities over this extended transaction for Mr. Sood to stand back, catch his breath, calm himself and change course. But he did not do so. Rather, he continued and indeed escalated his single-minded and destructive pattern of intimidation in a determined and resolute effort to realise his objective. In a word: (

a) he identified the outcome he was seeking; (

b) he settled upon a strategy for wearing down M&M’s resistance in order to achieve that outcome (the application of increasing, hostile and profane pressure); and (

c) over a period of hours he implemented that strategy by making up to 25 increasingly intimidating telephone calls to M&M representatives in the course of which, inter alia , he threatened to cause Mr. Knudsen death or bodily harm. [ 40 ] In my view, the planning and premeditation that is writ large on the face of that calculated and lengthy course of deplorable conduct on Mr. Sood’s

part can justly be treated, for sentencing purposes, as an aggravating factor. [ 41 ] At common law, where an offender shows a callous disregard for the harm that is caused by his or her conduct to his or her victim, that disregard too will operate in aggravation of sentence. This factor is clearly engaged by the facts before the court in the case at bar. The evidence at trial revealed the extent to which Mr. Sood’s harsh campaign of intimidation culminating in a threat to cause death or bodily harm caused upset and fear for M&M’s representatives, including but not limited to Mr. Knudsen.

That upset and fear comes through clearly in the Victim Impact Statement that was filed as Exhibit 1 at Mr. Sood’s sentencing hearing. It is plain that Mr. Sood was so single-mindedly bent on getting M&M to remove the Dresser from his house on the same day the tipping incident occurred that he was pitilessly indifferent to the effects his relentless campaign of telephone intimidation would cause for those at M&M who took his calls and, in particular, for Mr. Knudsen—the recipient of the s. 261(1)(

a) threat. It follows that callous disregard for the victim of an offence as a common law aggravating factor for sentencing purposes is also fully in play in the case at bar. THE PURPOSES, OBJECTIVES AND PRINCIPLES OF SENTENCING [ 42 ] In R. v. Pommer , 2008 BCSC 737 , D. Smith J. (as she then was) provided a helpfully concise

summary of the purposes, objectives and principles of sentencing as they are presented in ss. 718 ff of the Criminal Code and the case law that has interpreted those sections. That

summary, which I respectfully adopt, is found at paras. 42-43, and it reads as follows: “The ‘normative’ principles of sentence are set out in ss. 718 , 718.1 , and 718.2 of the Criminal Code (see R. v. L.M ., 2008 SCC 31 ).

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just and peaceful society by imposing fair sanctions that reflect the objectives of sentencing as identified in s. 718 of the Criminal Code : to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

Section 718.1 sets out the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 lists other sentencing principles to be considered including aggravating or mitigating circumstances relating to the offence or the offender, evidence that the offender in committing the offence abused the offender's spouse or a position of trust in relation to the victim; that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered.” [ 43 ] In sentencing Mr.

Sood I must and shall be cognizant of and follow the general approach reflected in that quotation. [ 44 ] That said, a somewhat specialised body of case law has developed over the years to deal with situations where police officers come before the courts for sentencing after they have pleaded guilty to, or been convicted of, criminal offences committed while they were on duty or off duty. Therefore, I must, as well, be cognizant of and take guidance from that law here. (I take that guidance recognising, of course, that no two cases are wholly alike and that sentencing entails a highly individualised process.

The objective of the exercise, in any given case, is to achieve the best match possible between the sanction imposed and the contours of the circumstances that are unique to that case.) [ 45 ] Certain overarching considerations emerge from the aforementioned, somewhat specialised body of case authority dealing with

police offenders. They include the following: (

a) As to sentencing objectives, “general deterrence and denunciation overshadow all other principles when it comes to shaping a fitsentence for a police officer”: Robinson, at para. 15 (S.C.). See also, for example, R. v. Bal, [2013] B.C.J. No. 237 at para. 95 (Prov.Ct.); (

b) As to the severity of sentencing, “[t]he commission of offences by police officers has been considered on numerous occasions bythe courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commitsthe same crime because of the position of public trust which they held at the time of the offence and their knowledge of theconsequences of its perpetration”: R. v. Cusack, (NS CA), [1978] N.S.J. No. 538 at para. 13 (S.C. – A.D.). See also,for example, Robinson at para. 13); and (

c) As to the significance for sentencing of the fact that an offence was committed while a police officer was off duty: “It mattersnot whether he was on or off duty”: Robinson at para. 14).[2] SUSPENDED SENTENCE OR CONDITIONAL DISCHARGE? [46] As I have noted at the beginning of these Reasons for Sentence, while counsel are agreed (and I accept) that a probationaryorder must form part of the sanction imposed upon Mr. Sood as a result of his conviction for threatening to cause Mr.

Knudsen death orbodily harm, they are sharply divided as to whether that probationary order should be associated with the suspension of the passing ofsentence (as the Crown submits) or with a conditional discharge (as Mr. Sood submits). The difference carries great significance insofaras the former would leave Mr. Sood with a criminal record whereas the latter would not.[3] [47] Looking at the conditional discharge option, there is no true disagreement between counsel that, for the purposes of the firstbranch of the test under s. 730(1) of the Criminal Code, a discharge would “be in the best interests” of Mr.

Sood. This is generally so incases where specific deterrence is not a significant consideration: see R. v. Fallowfield, (BC CA), [1973] B.C.J. No.559 at para. 21(5) (C.A.). Assuming that Mr. Sood will embrace and take the benefit of what will become available to him in terms ofanger management counselling—a reasonable assumption in my view—the likelihood that he will commit further offences of a similarkind is low. Thus, the Crown does not place any emphasis on specific deterrence in its sentencing submissions regarding Mr.

Sood and,indeed, acknowledges at para. 21 of its counsel’s written submission that “a discharge would be in the best interests of the [offender]”and that “specific deterrence has likely been attained”. [48] It is with respect to the second branch of the test—namely, the question of whether a discharge of Mr.

Sood in thecircumstances of this case would “not be contrary to the public interest”—that the disagreement between Crown and defence truly arises. [49] The Crown frames the question this way: “The court ought to enquire whether, and if so how, the grant of a discharge might beinjurious to the public interest.” Counsel goes on to submit that to grant a discharge of Mr. Sood on the facts here would be contrary tothe public interest for two main and interrelated reasons, namely: (

a) because a discharge would not achieve the required general deterrence effect; and (

b) because a discharge would have the effect of undermining public confidence in the police. [50] These concerns are not merely theoretical in the present case. The passages quoted above from Mr. Knudsen’s Victim ImpactStatement make plain that his experience with Mr. Sood have shaken his confidence in the police and left him with lingering worriesabout how being involved in the prosecution of Mr. Sood might redound to his detriment in any future dealings he may have with thepolice. [51] In R. v. Greenough, [2005] O.J.

No. 2302 (C.J.), Keast J. suspended the passing of sentence for an off-duty police officer whoassaulted a civilian. In doing so, the sentencing judge considered but declined to grant the offender a conditional discharge, citing thepublic interest branch of the test under s. 730(1) and concluding, inter alia, that the general deterrence objective would not besufficiently served by a discharge.

At para. 29, the following passage appears in the Greenough Reasons for Sentence: “… The police community in this city is looking carefully at this case and what message can be drawn from the case, and the messagethat, in my view, must be given to the police community and others is that the concept of general deterrence must be sufficientlycomplied with, and it is for those reasons that I reject the conditional or absolute discharge.

A conditional discharge does not adequatelydeal with the issue of general deterrence in these particular factual circumstances.” [52] It is reasonable to expect that the police community in British Columbia—an ascertainable group that it is appropriate for thecourt to have in mind for general deterrence purposes[4]—will, similarly, look carefully at Mr. Sood’s case and “what message can bedrawn” from it. [53] Factors operating in aggravation of sentence featured prominently in the court’s reasoning when the passing of sentence wassuspended and the conditional discharge option was rejected in Greenough.

In this regard there are some important commonalities to bediscerned between Greenough and the case at bar—commonalities that help to propel the court to the conclusion that, here as well, aconditional discharge would constitute an inadequate sanction, having regard to, inter alia, the issues of general deterrence and fosteringpublic confidence in, and respect for, the police. [54] It will be recalled that, as I found in my Reasons on Conviction and as I have emphasised earlier in these Reasons for Sentence,in the course of his off-duty efforts to vindicate what he considered to be his private right—namely, to have the subject Dresser picked upfrom his home and returned to the store on the same day he informed M&M of his complaint about it—Mr.

Sood expressly invoked hisstatus as a police officer. That is, when Mr. Knudsen told him that if his relentless pattern of profane and threatening telephone callingdid not cease M&M would have to call the police, Mr. Sood responded by saying “Don’t bother, I am the fucking police”.

[ 55 ] Can there be any doubt in anyone’s mind that such a statement would raise the temperature in an already very troubled series of interactions and amplify the intimidating effect of Mr. Sood’s ruthless campaign against M&M and its representatives? [ 56 ] Recall that Mr. Sood also testified that he threatened to bring the Dresser back down to M&M and throw it through the store’s front window if M&M did not come to pick it up straightaway. Recall as well that, while being cross-examined at trial, Mr.

Sood agreed with Crown counsel when she put it to him that “his behaviour was threatening, even if we disagree about your words”. It is little wonder that he made that concession. [ 57 ] From these things and others we know that quite apart from the specific threats Mr. Sood levelled at Mr. Knudsen to cause him death or bodily harm by bashing his head in, the situation as a whole was manifestly threatening and intimidating, as Mr. Sood himself admitted, and becoming increasingly so. By responding to Mr.

Knudsen’s reference to M&M possibly turning to police for assistance with that situation by telling him “Don’t bother, I am the fucking police,” Mr. Sood not only discouraged recourse by Mr. Knudsen to law enforcement assistance at a time of need, he made himself an even more threatening and worrisome adversary—one who apparently would stop at nothing to get his way.

And this, again, all unfolded in a misguided effort to secure a favourable result in a private consumer dispute that had nothing whatsoever to do with his powers, privileges, duties and responsibilities as a police officer. [ 58 ] As I have noted, there is an eerie parallel to be seen between Mr. Sood’s reference to his own status as a police officer while engaged in a pattern of escalating intimidation of M&M representatives and the similar, self-referential statement made by the off-duty Sudbury police officer who is the subject of the sentencing decision in Greenough .

At para. 7 of that decision, Justice Keast makes the general observation—consistent with British Columbia sentencing authorities regarding off-duty officers—that “When a police officer is off duty, he is still a police officer.” [5] Then at paragraph 21 of Greenough , the sentencing judge discusses some of the factors he considered aggravating.

The interaction between the off-duty officer and his victim, culminating in the subject assault in that case, is characterised in that paragraph (and in para. 7) as being marked by an “atmosphere of power, control and domination” attributable to the officer’s actions as contextualised by his position of authority. [ 59 ] Certainly, the atmosphere in the dealings between Mr. Sood and Mr.

Knudsen can be described in the same way. [ 60 ] Paragraph 21 of Justice Keast’s Reasons for Sentence in Greenough concludes with these words: “The accused’s confrontational approach to a stranger and the public is unacceptable behaviour for an off duty police officer.

The accused abused police power by defiantly stating “I am the police” in response to [the victim’s] indication that he was going to call the police.” [ 61 ] As I have noted, Justice Keast went on, in Greenough , to suspend the passing of sentence for the officer who committed the off-duty assault, placing him on probation for 12 months. [ 62 ] In a rather different context—one in which a police officer engaged in sexually explicit e-mail conversations with a person who represented herself to be under the age of 16 and pleaded guilty to committing an offence under s. 122 of the Criminal Code —the offending constable made “repeated references to being a police officer”: R. v.

Devic , [2018] B.C.J. No. 3434 at para. 5 (Prov. Ct.) . The officer did so at times when he was on duty and at other times when he was off duty. This aspect figured prominently in the sentencing logic of Sutherland P.C.J. who, under the subheading, “Aggravating Circumstances,” noted the following points: • “S. 718.2(a)(iii) of the Code stipulates that abusing a position of trust or authority in relation to a victim is an aggravating factor on sentence. Mr. Devic had the moral blameworthiness for this aggravating factor had his online interlocutor been genuine. • As a police officer, Mr.

Devic must have known the consequences of his actions while doing them. He would have been aware that using his position as a police officer to facilitate an online sexual relationship with someone who represented herself to be underage would have serious consequences. • Mr. Devic's conduct was not spontaneous or impulsive. The communications continued over a period of time and were methodical and calculated. • Mr. Devic was communicating with and trying to meet with Ms.

Van Vliet at times while on duty, and at least once while in uniform. • The offence has had the collateral consequence of tarnishing the reputation of the RCMP and police generally despite the reality that the vast majority of RCMP officers perform their work with integrity, dedication, and professionalism. • Mr.

Devic placed at risk the confidence and trust the broader community has in police officers .” (emphasis added) [ 63 ] Addressing the issue of the effects of different kinds of sentencing options upon public confidence in the police, Judge Sutherland went on, at paras. 46 and 47 of Devic , to add to the last two bullet points above some more general statements about what is lost when a police officer uses his or her status for a purpose other than to serve the public good: “As a police officer, Mr. Devic was entrusted by the public with powers and influence not afforded ordinary citizens.

That trust and the privilege that goes with it created public expectations and a duty for Mr. Devic to conduct himself to a high standard of responsibility and conduct for the public good. This relationship of trust and responsibility between the public and police is essential to maintaining public confidence in those who exercise law enforcement powers. Mr. Devic abused that trust by using his status as a police officer for a purpose other than the public good. Mr. Devic’s offending was more of a direct hit to the public interest than in other cases.” [ 64 ] I made similar points in R. v. Tsui , [ 2008] B.C.J.

No. 1096 (Prov. Ct.) at paras. 51-52 when I stated this:

“… I believe that it is reasonable to infer that the circumstances of this case have brought some discredit upon the RCMP in the eyes ofthe public. Citizens are entitled to expect more of those who enjoy the special privileges, powers and status that police officers possessthan what Cst. Tsui displayed during the events of April 1, 2006.

It is a fair inference that when he assaulted [his victim], he diminished,to a degree, public confidence in the law and law enforcement institutions generally because his actions cannot be wholly separated fromhis status as a police officer, even though the assault occurred during off-duty hours. (While there was no evidence placed before me toprove that Cst. Tsui's off-duty behaviour has adversely affected the public confidence in the law and law enforcement, there is authorityfor the proposition that in proper circumstances, those adverse effects can reasonably be inferred: Fountain v.

British Columbia Collegeof Teachers, 2007 BCSC 830, per Ross J. at paras. 47-65, citing inter alia the reasons of La Forest J. in Ross v. New Brunswick SchoolDistrict No. 15, (SCC), [1996] 1 S.C.R. 825.) The issue of damage to public confidence in the law and law enforcement is relevant because it ties directly into what Parliament,through the opening language of s. 718 of the Criminal Code, declares to be the ‘fundamental purpose of sentencing’, namely, ‘tocontribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society’.

Cst.Tsui's widely publicised conduct on the night in question did not reveal a sufficient respect for the law on his own part, nor did itcontribute to a respect for the law or law enforcement agencies on the part of others.” [65] To that last quoted paragraph I would add, for present purposes, that the issue of public confidence in the law and lawenforcement personnel is relevant because it also ties directly into what Parliament had in mind when it restricted the use of the dischargesanction to cases where it is not contrary to the public interest to discharge an offender. [66] Like the officers in Devic and Greenough, Mr.

Sood in my view invoked his status as a police officer for entirely improper andcollateral purposes—in his case to vindicate what he believed was his private right in a consumer dispute. His self-referential statementinvoking his power and authority was uttered with no hint of serving the public good.

The injury to the public repute of law enforcementthat this kind of conduct inevitably must cause calls out for a sanction that is commensurate with its broad, societal implications—asanction that, beyond being pointedly denunciatory, also sends a message to the public that such abuses of trust and power are dealt withresolutely by courts when police officers who commit such offences are finally called to account.

The approach taken to sentencing Mr.Devic provides helpful guidance to me in the case at bar when I consider the public interest branch of the test in s. 730(1) and therelevant issues of general deterrence and the potential undermining of the public’s trust and confidence in the police. [67] I have carefully considered the submissions made in favour of the use of the conditional discharge sanction by Mr. Sood’scounsel.

However, for the reasons I have given above, I am simply unable to accept that in the unique circumstances of this case, aconditional discharge would adequately serve the statutory sentencing objectives of denunciation or general deterrence—matters that, asDillon J. stated in Robinson, “overshadow all other principles when it comes to shaping a fit sentence for a police officer.” Moreover, aconditional discharge would in my view degrade public confidence in the law and in the law enforcement personnel who are called uponto uphold it. [68] The fact that a suspended sentence would leave Mr.

Sood with a criminal record is a matter of grave concern to him for reasonsthat everyone can understand. But, there are times when having an offender’s transgression made formally a matter of public record canbe justified.

It can be justified here, in my view, in order to serve the objectives of enhancing general deterrence and of cultivating publicconfidence in the police, in the law, and in the processes by which law enforcement personnel are held to account when they transgress.Seen in this way, the fact that a suspended sentence carries with it a criminal record for the offender actually forms part of the rationalefor choosing that sanction. As McGillivray J.A. stated (per curiam) in R. v. B.J.M., 1976 ALTASCAD 6 , [1976] A.J.

No. 429(C.A.) at para. 20: “…we think it relevant to consider whether the circumstance that an Accused has committed the offence is something which should be amatter of record so that members of the public may have the opportunity of being aware of the fact that the Accused has committed theoffence 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.” [69] In my respectful opinion, that reasoning applies mutatis mutandis to Mr. Sood’s offending in the case at bar and the uniquespecies of “breach of trust”—acknowledged in s. 718.2(a)(iii) of the Criminal Code—that it reflects on his part.

Such offending bypolice officers can also be fairly said, for reasons akin to those given in B.J.M., to call for some formal notoriety where that formalnotoriety itself serves a public interest. A criminal record for a deserving police offender furnishes that formal notoriety in a measuredway. [70] I am thus persuaded by the arguments presented by the Crown that, on the second branch of the s. 730(1) test—the publicinterest branch—a conditional discharge is foreclosed as a sentencing option for Mr. Sood. [71] Mr.

Sood’s counsel made well-conceived and articulate submissions, citing numerous authorities, all in an effort to convince thecourt to conditionally discharge him. In various ways, however, the authorities upon which counsel relied can be seen to bedistinguishable. Many involved “heat of the moment” incidents. None involved threats to cause bodily harm or assaultive behavioursembedded in and contextualised by protracted displays of otherwise intimidating and threatening behaviour.

Having made such pointsgenerally, I do not see that any useful purpose would be served by my going through those distinguishable authorities and pointing outthe differences between them and the case at bar, one by one. [72] I will acknowledge that the facts of some of the cases the Crown has cited to the court and upon which I have placed reliance—like Robinson for example—involve more egregious facts than those revealed in the case at bar. However, the general principles thatemerge from those cases are nevertheless sound and the applicability of those principles to Mr.

Sood’s case is not unseated by the factualdistinctions that his counsel has highlighted in her able submissions. [73] It is also true that in some of the cases cited to me by Mr. Sood’s counsel, police offenders have received conditional dischargesin circumstances where they have inflicted actual physical harm upon their victims. Seen in that light, declining to follow the same path

in a case, like the one at bar, where physical harm was only threatened but not actually inflicted, may at first blush provoke perplexity on the part of some. [ 74 ] However, a central feature in my reasoning above—that is, the express invocation by Mr. Sood of his status as a police officer while committing the offence for which he is answerable—serves to separate the case at bar from essentially all of the authorities upon which Mr. Sood’s counsel relies.

Saying the words, “Don’t bother, I am the fucking police” at the time and in the circumstances he said them amounts to a profoundly aggravating factor for sentencing purposes, as I have been at pains to explain. Having said those words to Mr. Knudsen, Mr. Sood brought the full weight of his special powers and authority as a police officer into the equation, both on the offence date and now on his day of reckoning; he actively misused those powers and that authority, thereby compounding the jeopardy he faces as a police offender awaiting sentencing in a very significant way.

Nothing comparable to that aspect of the case at bar can be seen in any of cases placed before me other than Greenough and Devic . [6] CONCLUSION AND DISPOSITION [ 75 ] Mr. Sood, would you please stand? [ 76 ] For all of the foregoing reasons, I decline to sanction you for uttering threats to cause death or bodily harm to Gert Knudsen by granting you a conditional discharge. Rather, I elect to suspend the passing of sentence upon you for a period of 12 months, commencing today, pursuant to s. 731(1) (

a) of the Criminal Code . [ 77 ] I do so having given due regard to both the mitigating and aggravating circumstances that have been identified to me and to which I am permitted to give regard. I do so believing that to suspend the passing of sentence upon you will contribute to respect for the law and the maintenance of a just and peaceful society. I do so believing that that disposition is proportionate to the gravity of the offence you committed and that it properly reflects the considerable moral blameworthiness you bear for threatening to cause death or bodily harm to Mr.

Knudsen in circumstances where you also invoked your powers and authority as a police officer for a collateral and improper purpose. [ 78 ] I have been persuaded that in order to properly give effect to the statutory objectives of sentencing set out in s. 718 of the Criminal Code —denunciation and general deterrence being objectives of surpassing importance in your case—I must suspend the passing of sentence and not discharge you.

In coming to that decision I have taken helpful guidance from other cases in which that sanction has been imposed upon somewhat similar offenders who committed somewhat similar offences in somewhat similar circumstances. [ 79 ] During the 12-month period while the passing of sentence will stand suspended, you shall be subject to an order of probation. The terms of that order of probation are as follows:

(1) You must keep the peace and be of good behaviour and report to court when required to do so.

(2) You must report, forthwith following your court appearance today, to a probation officer at 2610 Mary Hill Road, Port Coquitlam, British Columbia. Thereafter, you must report where, when and in the manner directed by your probation officer but only for the purposes of enabling your probation officer to monitor your compliance with the counselling and community work service conditions included in this probation order.

(3) You must provide your probation officer with your residential address and telephone number and not change either without first obtaining the written consent of your probation officer.

(4) You must attend at, participate in and complete such counselling as your probation officer directs to the satisfaction of your probation officer. That counselling may include, but is not limited to, anger management counselling.

(5) Not later than the end of the sixth month of your probationary period you must complete 30 hours of community work service to the satisfaction of your probation officer;

(6) You must have no contact or communication whatsoever—including but not limited to telephone contact or communication— with Gert Knudsen, Jesse Knudsen, Anita Tiernan or any other persons known to you to be employees or representatives of either ScanDesigns Quality Home Furnishings or Muse and Merchant Home Collection.

(7) You must have no contact or communication whatsoever—including but not limited to telephone contact or communication— with any ScanDesigns Quality Home Furnishings or Muse and Merchant Home Collection store anywhere in the province of British Columbia.

(8) You must not be found within 100 metres of any residence, place of employment or place of education known to you for Gert Knudsen, Jesse Knudsen or Anita Tiernan.

(9) You must not be found within 100 metres of any ScanDesigns Quality Home Furnishings or Muse and Merchant Home Collection premises anywhere in the province of British Columbia, including but not limited to the premises located at 1400 United Boulevard, Coquitlam, British Columbia. [ 80 ] Those are your probationary terms. Before attending for your first reporting event at the probation office you must first attend at the court registry to sign your probation order. Your signature on that document will signify that you both understand your terms of probation and that you solemnly promise to abide by them. [ 81 ] That concludes my Reasons for Sentence in this matter.

___________________________Thomas S. Woods, P.C.J. [1] While it is true that Mr. Sood’s campaign of harassment was initially triggered by the Dresser tipping incident, his actions thereafterreflected—over a period of hours—the relentless pursuit of a plan to achieve a particular objective. [2] In R. v. Atleo, [2014] B.C.J. No. 310 at para 41 (Prov. Ct.), Gouge P.C.J. expressed disagreement with the quoted passage fromRobinson—the leading authority in British Columbia—stating “I do not think that the phrase was intended to be taken literally, nor thatit should be. Abuse of power is always a very serious matter.

A police officer who makes use of his official position to commit anoffence, or to conceal an offence which he has committed, should incur a more stringent penalty than a private citizen who commits asimilar offence. The sentencing imperative is less strong in relation to a police officer who commits an offence, but does not takeadvantage of his official position or powers in so doing. To that extent, at least, it matters whether the officer was on or off duty and, ifoff duty, it matters whether the officer made use of his official position or powers to commit or cover up the offence”.

While Irespectfully disagree with Judge Gouge and consider Robinson unglossed to be an authority that is binding upon this court, even on hisanalysis in Atleo a “more stringent penalty” than would be applied to a “private citizen who commits a similar offence” is mandated forMr. Sood in the case at bar. It will be recalled that when told by Mr. Knudsen that if he kept on making threatening and intimidatingtelephone calls to M&M, he would have to call the police, Mr. Sood responded, “Don’t bother. I am the fucking police.” In doing so,Mr.

Sood “made use of his official position or powers” as a police officer when committing, off duty, the offence of which he wasconvicted. This, in my respectful view, makes the fact that he was off duty at the time “matter not” (to quote Dillon J. in Robinson). [3] Assuming Mr. Sood complies fully with all of his probationary terms. [4] The existence of such an ascertainable group of persons as a target for general deterrence is relevant to the general deterrenceanalysis: see R. v. Nguyen, [2009] B.C.J. No. 2414 at paras. 25-30 (C.A.) and the cases cited therein. [5] See, to a similar effect, R. v.

Tsui, [2008] B.C.J. No. 1096 (Prov. Ct.) at paras. 37-44. [6] The fact that the off-duty officer/assailant in R. v. Klassen, 2011 BCPC 109 , 2011 BCPC 0109 did “at some point …identify himself as a police officer” does not, in my respectful view, amount to an invoking of police officer status that comes anywherenear to what Mr. Sood did when—by stating, “Don’t bother, I am the fucking police,” he sought not only to dissuade Mr.

Knudsen fromgetting police assistance for himself and his employees at a time of need but also to improve the chances that his demand that the Dresserbe collected by M&M from his house straightaway would be fulfilled.