R. v. Wilson, 2017 ONCJ 74

ONTARIO COURT OF JUSTICE CITATION: R. v. Wilson , 2017 ONCJ 74 DATE: January 25, 2017 COURT FILE No.: Region of Durham 998 16 N0390 BETWEEN: HER MAJESTY THE QUEEN — AND — Candace Wilson Before Justice J. De Filippis Heard on January 9, 2017 Reasons for Sentence released on January 25, 2017 Mr. R. Garwood-Jones ........................................................................... counsel for the Crown Mr. P.

Barr........................................................................................... counsel for the defendant De Filippis J.: [ 1 ] The Criminal Code prohibits pointing a firearm at another person without lawful excuse. The defendant admits she committed this offence on February 17, 2016, at the No. 2 District Police Station in City of Niagara Falls. [ 2 ] The defendant is employed as a police officer with the Niagara Regional Police Service.

At 5:30 AM on the date and place in question she attended the radio room at the end of her night shift to return a service rifle she had signed out at the start of her shift. Two other officers, P.C. Sigrid and P.C. Karl Kreiger were in the room. The defendant unloaded the magazines from the rifle and placed them in a storage locker. Having done so, she pointed the barrel of the firearm at P.C. Sigfrid and then pushed the muzzle of the rifle into his chest. This incident was not witnessed by P.C. Kreiger, but it was observed by a third officer, P.C. Shoenhals, who entered the room at the time.

The latter said, “I don’t want to see that again” to which the defendant replied, “It’s not loaded”. P.C. Shoenhals added, “I don’t care, never again”. Immediately upon being confronted in this manner, the defendant lowered the firearm and returned it to storage. Within 90 minutes, she was interviewed by Detective Sergeant Smith, placed under arrest, and suspended from duty. [ 3 ] P.C. Shoenhals later reported that during the incident, P.C. Sigfrid said nothing and appeared nervous. P.C.

Sigrid subsequently stated that “As we were talking, [the defendant] removed the magazine and pointed [the firearm] at me and while laughing pushed it into my chest”. He noted that he did not believe the rifle to be loaded when the offence was committed. [5] Defence counsel provided me with a Book of Documents containing letters of support, confirmation of community service, and details of counselling sessions. I will summarize this material as it is important to my decision. Ms.

Rena Posteraro reported that she has known the defendant “since she was a little girl and in that time I have seen her grow into a wonderful, intelligent and very caring young woman….her dream was to be a police officer….Candace has always brought joy and happiness to her family and friends.” Ms. Melissa Atamanyk has known the defendant for 10 years and describes herself as a “close friend”. She noted that “Candace has leaned on me from the beginning of this unfortunate situation for moral and emotional support and I have seen how it has affected her and how this situation has impacted her life”. Mr.

Frank Campion , Mayor of the City of Welland , observed that “I have known [the defendant] since she was born and have witnessed her evolution into a responsible, respectful, and caring young woman

whose values revolve around commitment to family and community….She has much to contribute to the Police Service and the community and I hope she will be given the opportunity to continue with this commitment”. [6] A letter from Homewood Health confirms that one week after her arrest, the defendant began counselling and continued with this until the end of August, 2016. Afterwards, from November 2016 to January 2017 she volunteered 39.5 hours of her time with the Wellspring Niagara Cancer Support Foundation. [7] I have the benefit of a psychological report from Dr.

Rajska and, in particular, the following observations: [The defendant] describes feeling shocked and overwhelmed at the consequences that she has faced; she notes she has never previously been in any kind of trouble, and often feels like she is living a bad dream….Ms. Wilson is currently experiencing severe symptoms of generalized anxiety, panic, depression, social anxiety, insomnia, and digestive upset related to anxiety. She is understandably concerned for her future, as she fears the loss of her career….She has also lost her previous sense of confidence in her ability to do her job competently.

Two weeks later, Dr. Rajska prepared a “Functional Abilities Form” for the Niagara Police Service in which it was noted that the defendant had been absent from work for “mental health reasons” and that the “prognosis is excellent…no restrictions or concerns; fit for duty, fit for use of force”. [8]

Section 718 of the Code provides 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. [9] Parliament has given judges the discretion to avoid the normal consequence of a finding of guilt.

Section 730 provides that, Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2) [10] Consistent with the duty of all counsel to 'give the judge the law', the Crown provided me with three cases in which police officers have been charged with pointing a firearm at another officer without lawful excuse.

The results in two of the cases are contrary to the position taken by the Crown before me, but the reasoning in all three have helped me decide this matter. I am grateful for this assistance. The cases are; R v Lansimaki [1998] O.J. No. 5659 (Ontario Court of Justice – Provincial Division), R v Cameron [2010] O.J. No. 6356 (Ontario Court of Justice) , and Galassi v Hamilton (City) Police Service [2005] O.J. No. 2301 (Ontario Superior Court of Justice – Divisional Court). [11] The Crown acknowledged that a discharge is appropriate in this case but resists the suggestion it should be absolute.

Such a disposition, he argued, fails to account for the seriousness of the matter and the need to deter others in like circumstances. Counsel suggested I place the defendant on probation for a period of 15 months with terms that include another 140 hours of community service. [12] Defence counsel urged me to grant his client an absolute discharge. Counsel noted that she has been greatly affected by the incident and has undergone counselling. Being a police officer is part of her identity and the stigma from her misconduct is keenly felt.

He submitted that nothing more need be done by way of sanction. [13] The defendant’s conduct is not only a crime, it is contrary to her police training as reflected in the regulations to the Police Services Act ; namely, that an officer never point a firearm, whether loaded or not, at another person unless her life or the life of another is in danger ( Galassi , supra, para 29).

The potential harm is obvious and this is the aggravating factor to consider: Although the defendant believed the firearm was not loaded, because she had removed the magazine from the rifle, there is the possibility, however, slight, that a bullet remained in the chamber. Moreover, what the defendant intended as a lark, and may have been received as such by P.C.

Sigfrid, could reasonably be interpreted as a hostile act by a third party coming upon the scene, with the risk of a protective and violent response. [14] In mitigation, I note that the defendant pled guilty and has no prior criminal or disciplinary record. She is a young officer who acted out of character. Notwithstanding the potential consequences, her actions were not motivated by malice, but foolishness. She has been significantly affected by the incident, such that counselling was required. I am advised the media coverage of the incident added to her feelings of shame and anxiety.

These feelings confirm the extent to which the defendant is remorseful and understands that what she did was wrong.

[15] As a police officer, the defendant occupies a position of power and respect in the community. Crown counsel observed that “to whom much is given, much is expected”. This is correct – but it is also true that people in a position of authority and public trust can suffer far more than others from their misconduct. That is the case here. [16] Specific deterrence not a factor: the defendant does not need to be “taught a lesson” to prevent future misconduct.

Rehabilitation is also not relevant; the defendant is sorry for what she did, understands why it is wrong, and has the family and community support to help her move forward. With respect to the latter, I am mindful that Crown counsel pointed to the apparent conflict in the two assessments prepared by Dr. Rajska . Defence counsel suggested the first assessment describes what has endured, whereas the second one looks to the future. In any event, I understand that following the completion of this criminal proceeding, a hearing pursuant to the Police Services Act will resume.

Any actual conflict between the assessments will, no doubt, be considered by that tribunal in the discharge of its mandate. [17] The criminal law condemns offenders in solemn ritual. On rare occasions, being compelled to undergo this public process is, in itself, a sufficient response to the offence. This is one of those cases. Denunciation is achieved without further sanction on my part and I am confident that general deterrence is not, thereby, undermined.

This result is clearly in the defendant’s interest and I am persuaded that it is not contrary to the public interest. [18] Candace Wilson is found guilty of pointing a firearm. She is discharged absolutely. Released: January 25, 2017 Signed: “Justice De Filippis”