R. v. Kirby, 2021 MBPC 50

CITATION: R. v. Kirby, 2021 MBPC 50 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) C. Vanderhooft ) for the Crown ) and ) ) Barry Kirby ) L. LaBossiere and J. Weinstein (Accused) ) for the Accused ) ) ) ) Sentence delivered: ) October 19, 2021 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] Constable Kirby is a police officer with the Royal Canadian Mounted Police (RCMP) who was charged with and pleaded guilty to careless use of a firearm pursuant to s. 86(1) of the Criminal Code arising from an incident that took place June 10, 2018.

It is an unusual case; Constable Kirby discharged his firearm because he believed he would be killed or gravely injured by a Dodge Ram truck driven by a youth that had already driven at him once and was accelerating towards him a second time. No one was struck with a bullet. [ 2 ] This is my sentencing decision. [ 3 ] The defence is seeking a discharge pursuant to s. 730 of the Criminal Code . The Crown proceeded summarily and is seeking a fine or suspended sentence, noting that supervised probation is not necessary.

The Crown argues that registering a conviction is necessary and that it would be contrary to the public interest to allow Constable Kirby to be discharged. [ 4 ] Not only does Constable Kirby not have a criminal record, but he also has an exemplary service record, and the plethora of letters of reference filed in this sentencing outline his history as a person of high integrity and kindness. FACTS [ 5 ] At around 3:00 a.m. on June 10, 2018, Constable Kirby was patrolling in Selkirk, Manitoba when he observed a Dodge Ram truck with no front licence plate and a burned-out headlight.

He made a U-turn to conduct a traffic stop, but at that point, the truck turned out its light and accelerated across a bridge and then drove off-road into a set of trails. Constable Kirby dispatched other units and followed the truck. He followed the truck until the ruts in the bush made it unnavigable and then exited his police vehicle to follow on foot. The truck appeared to be stuck and the driver attempted to turn around. Constable Kirby was shining his flashlight at the driver and yelling loud commands for him to get out of the truck with his hands in the air. He had also drawn his service pistol.

There was a downed tree between himself and the truck. As he continued to yell commands, the truck accelerated and drove towards him despite having other avenues of escape, striking the downed tree which struck Constable Kirby in the leg. Constable Kirby feared for his life. The truck backed up, accelerated, and drove at him again. Constable Kirby pointed his service pistol at the driver to neutralize the threat and fired four rounds of ammunition as he was trying to move out of the way. The truck stopped, then backed up and drove out on the trail.

The driver had a choice to drive on the trails each time, but instead drove the truck at Constable Kirby who was in the middle of the trails in thick bush. Other units located and arrested the driver approximately two hours later. He was uninjured. He was also a youth. Two bullets struck the vehicle near the engine block; the other two bullets discharged were not found.

[ 6 ] In setting out the facts of this case, the Crown also noted several mitigating factors. But for the statement of Constable Kirby, this charge would not have been laid. The victim in this matter declined to provide a statement. He is a young offender with a record of motor-vehicle offences prior to this offence. Arising from this occurrence, he was charged with dangerous operation of a vehicle cause bodily harm, flight from police, assault police officer with a weapon, public mischief, a breach of his undertaking not to drive or be in a motor vehicle without the registered owner, and a breach of his curfew.

He pleaded guilty to offences arising out of this circumstance and received a two-year youth sentence. He committed a subsequent set of offences very similar to this one in April 2019: assault police officer with a weapon, dangerous operation of a motor vehicle and flight from police. [ 7 ] The young person also declined to provide a statement to the Independent Investigation Unit. SENTENCING POLICE OFFICERS [ 8 ] The fundamental purpose of sentencing as set out in the Criminal Code is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

This is accomplished by imposing just sanctions that have one or more objectives. Those objectives include denouncing unlawful conduct and the harm done to victims, deterring people from committing offences and separating offenders from society where necessary, rehabilitation, reparations for harm done to victims or the community, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community. [ 9 ] When key players in the criminal justice system commit offences, courts must be especially vigilant.

Police officers who break the law are held to a higher standard. But this is not a situation where serious – or any – harm came to a member of the public, where the officer committed a crime of dishonesty, such as perjury or theft, or a crime that involved deliberate and planned action by the officer, or a crime where the police officer took advantage of his position in society. Those types of crimes impact the public’s confidence in the administration of justice. ( See also R. v. Gabruch , 2016 ABPC 16 at para. 8 , quoting R. v. Sweet , 2007 BCPC 240 at paras. 31 – 32 ; R. v.

Baxter , 2018 ONCJ 608 at para. 23 .) [ 10 ] Although police officers may be held to a higher standard, at the same time they are entitled to the same right to be treated fairly and dispassionately on sentencing. Discharges have been granted to police officers in several use of force cases where the violence was relatively minor and in response to the “heat of the moment or some other provocation” ( Gabruch , at para. 9 ; Baxter , at para. 26 ), as opposed to a “deliberate leap into criminality” ( R. v.

Oke , 2021 MBPC 39 at paras. 42 and 62 ). [ 11 ] Maintaining confidence in the administration of justice requires that all offenders be treated fairly and without bias. [ 12 ] The main sentencing objectives in this case are denunciation and deterrence, although it will be seen in this decision that the offence is so close to the line in this case, that neither denunciation nor deterrence should be overstated. [ 13 ] The fundamental principle of sentencing is proportionality – the sentence imposed must be proportional to the gravity of the offence and the degree of responsibility of Constable Kirby in committing the offence.

The Offence [ 14 ] The offence to which Constable Kirby pleaded guilty is careless use of a firearm. It is conceded by the Crown that in the split second before he fired his service pistol, Constable Kirby believed his life was in danger. Objectively, however, Constable Kirby concedes that he had other options, and it is on this basis that he pleads guilty to the Criminal Code offence. The line between this being a contravention of police policy and breaking the law is a very thin line. In law, the act of careless use of a firearm is made out where there has been negligence.

The negligence must constitute a marked departure from the standards of a reasonable person in all the circumstances. The “reasonable person” is a police officer in this case. [ 15 ] There is no doubt that in Constable Kirby’s mind the youth was trying to kill him.

Constable Kirby had been in many high risk situations in his previous six years as a police officer, including having been shot at, having a firearm pointed at him from close range and being in a fight with a 300 plus pound person on top of him, choking him. [ 16 ] The Crown outlined the main findings of the Independent Officer Review of the incident as well as the Use of Force Report, which would characterize the offence as a crystallization of the mistakes and missteps Constable Kirby made in the moments leading up to the discharge of the firearm.

According to these reports, he should have activated his emergency equipment, he should not have pursued the vehicle for a highway traffic offence, there was no urgency to pursue the vehicle, he should not have exited his vehicle, he should have waited for backup, and he should not have positioned himself near the front of the vehicle. Although he subjectively feared for his life, it was not reasonable to discharge his firearm in all the circumstances that culminated at that moment. Constable Kirby is pleading guilty to careless use of the firearm only on that last point.

He does not agree with all the findings leading up to that moment. [ 17 ] Both the Crown and the defence had expert reports. The defence use of force expert came to a different conclusion on the ultimate issue, as well as on the steps taken by Constable Kirby leading up to the discharge of the firearm.

Defence counsel rightly emphasizes that a guilty plea in these circumstances is highly mitigating. [ 18 ] Although he has feared death before, he has never fired his service pistol. [ 19 ] At that moment, he believed only discharging his service pistol could save his life. [ 20 ] He was injured in the incident, when the youth drove at him and the downed tree struck his leg. He experienced bruising and soreness for approximately two weeks. He also experienced psychological sequelae.

He suffered from a nightmare disorder as a result of this incident, diagnosed by a psychiatrist and treated by a psychologist at the Operational Stress Injury Clinic in Winnipeg. Psychotherapy treatment was aimed at the nightmare disorder as well as to improve sleep and improve daytime anxiety related to his work. Constable Kirby reports that things are better, but he has not returned to the general well-being he enjoyed prior to this incident.

[ 21 ] Constable Kirby was placed on leave and then administrative duties for a period of time after the incident. During that time, he was ineligible for working overtime. He estimates a loss of approximately $36,000.00 in lost wages. He returned to regular full time work after an assessment and reintegration to ensure he is mentally well. The Offender [ 22 ] At the time he committed the offence of careless use of his firearm, Constable Kirby believed he was about to be killed by a truck driving at him. This was not a “deliberate leap into criminality”, but rather a split second response to an imminent threat.

The distinction was made by Justice Pomerance in R. v. Doering , 2020 ONSC 5618 at para. 30 : As with all groups of individuals, the crimes committed by police cover a broad range of conduct, with varying degrees of moral blameworthiness. Moral culpability is high when the crime involves a deliberate leap into criminality, such as when an officer decides to sell drugs, or steal money, or share confidential information. Moral culpability is lower when the crime committed by an officer is incidental to the discharge of a duty related to public safety. . . . ( cited in Oke at para. 42 , from R. v.

Letkeman , 2021 MBCA 68 at para. 39 ) [ 23 ] Constable Kirby is a married father of two. He grew up in New Brunswick, as did his wife. Both their families still live in New Brunswick. He wanted to be a police officer from a young age and worked diligently to obtain his acceptance at a very young age. He attended the RCMP training depot in Regina, Saskatchewan at the age of 19.

He was first stationed in Winnipegosis, Manitoba and then in the north at Wabowden, Manitoba for approximately five years, and then Selkirk, Manitoba, where he has been since 2017. [ 24 ] The defence filed 15 letters of reference from other RCMP officers who have worked with Constable Kirby over the past years, as well as letters from his parents and his wife. [ 25 ] They are universally positive. I found them to be thoughtful and insightful.

I have included a number of the comments which I think are relevant later in this decision. [ 26 ] The letters and submissions portray Constable Kirby as a hard-working, intelligent, compassionate person. His first jobs were as a paper carrier and clerk in the local drugstore when he was 13 years old. He was a responsible child who did not drink, smoke, indulge in drugs and he never caused his parents concern. He always exhibited the utmost integrity. One anecdote in the letter from his parents recalls that as a young driver he backed into a parked vehicle accidentally.

While many young people might have driven away undetected, he left his contact information on the vehicle and later made arrangements with the owner to pay for the damage done to the vehicle. As the letter stated, “He always did the ‘right thing’ even when there was no one looking.” [ 27 ] One of the characteristics repeated again and again throughout the letters of reference is that he is proactive and diligent. I observe that perhaps this offence was an over-extension of those qualities. [ 28 ] At the same time, despite his youth, he is viewed as a leader and mentor.

He has been a supervisor and is often relied on by colleagues for guidance. He is universally relied on and considered to be knowledgeable, professional and helpful. OTHER SENTENCING PRINCIPLES [ 29 ] There are many mitigating factors in this case: 1. Constable Kirby’s statement is the sole means by which this charge was laid; 2. He has pleaded guilty in a circumstance where his actions might be characterized as “barely” meeting the criminal standard of negligence; 3.

By pleading guilty, Constable Kirby has precluded the need for a complex and potentially lengthy trial where experts would have been tendered to provide expert opinion evidence about the “reasonableness” of his actions up to and including the discharge of his firearm; 4. If anything, his guilty plea in these circumstances restores public confidence in the police. [ 30 ] Although Criminal Code s. 718.2(a)(iii) considers “evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim” an aggravating factor on sentencing.

I am not sure that the evidence in this case supports such a claim, and indeed, the Crown did not rely on s. 718.2(a)(iii) in this case. [ 31 ] Having considered the objectives to be addressed in this case, and weighing the degree of moral culpability Constable Kirby possessed in committing this offence with the seriousness of the offence and the mitigating factors, I turn to consider whether a discharge would be an appropriate disposition. ABSOLUTE AND CONDITIONAL DISCHARGES [ 32 ]

Section 730 of the Criminal Code allows a judge in some circumstances (where there is no minimum sentence or the maximum sentence is not 14 years or life) to discharge an accused rather than registering a conviction where: a. The judge considers it to be in the best interests of the accused; and b. Not contrary to the public interest.

[ 33 ] The Crown argued that when police officers use force, and discharge their service pistols outside of police policy and guidelines and in violation of the law, they should get a criminal record. The Crown argued that in this case because Constable Kirby fired his pistol at a moving vehicle that he should not have pursued, he should get a criminal record. [ 34 ] Nonetheless, there are cases where police officers have received discharges from the court. [ 35 ] There were no similar cases for counsel to file in this case, because it was an unusual circumstance.

Although it involved a use of force, it is unlike any other use of force case. In each of the four cases filed, the police officer offenders were found guilty or pleaded guilty to assaults. The actions were intentional applications of force. The “victims” were all under police detention or in police custody at the time of the assaults. [ 36 ] In the 2016 case of Gabruch , Judge Fraser noted the 21 cases he had reviewed involving police assaults.

In those 21 cases, nine officers received discharges. [ 37 ] In Gabruch , the officer grabbed a prisoner by the neck and threw him on the floor after the complainant wanted to urinate. The Court found that there was no provoking behaviour by the prisoner, there was no imminent danger to officer Gabruch and that the prisoner was under the officer’s control at the time of the interaction. The Court found that the officer abused his position of trust and authority, which is an aggravating factor on sentencing.

That is unlike this case, where the youth was not under Constable Kirby’s control, and his behaviour of driving his vehicle at Constable Kirby provoked the officer to believe his life was in danger. [ 38 ] Moreover, the officer in Gabruch was found guilty after trial; it can be distinguished from this case where there was a guilty plea made in circumstances that were very close to the line in terms of whether a criminal offence had been committed. [ 39 ] The case of R. v. Briegel , 2016 ABPC 194 , involved an officer striking an intoxicated person in the face three times. The man would not leave Subway.

He was on the floor sleeping when the officer struck him in the face, “in a momentary lapse of control” (at para. 12). The sentencing judge found that the victim was in the police officer’s custody, he was vulnerable, and there was no provocation or danger to the officer. [ 40 ] In Baxter , the victim who suffered from mental illness and addictions was well-known to police in Niagara Falls, Ontario as an aggressive panhandler who could become obnoxious and frightening when intoxicated.

He was aggressively panhandling, trying car doors, and yelling and throwing things at passing vehicles the day that Officer Baxter arrested him. The Court found that the officer used excessive force in putting the victim on the ground, causing a laceration to his face. [ 41 ] In Oke , a very recent decision of my colleague Judge Thompson, police officers were trying to remove a very intoxicated woman from the porch area outside a homeless shelter. Several police officers and civilians were involved and the atmosphere was civil and at times jovial.

The male victim was calling the police names however, and at some point, spit. Thinking that the sputum hit him in the face, Constable Oke reacted immediately by walking four steps across the deck and punching the victim three times in the face. It should also be noted that the officer had been suffering from subsequently diagnosed work-related PTSD. [ 42 ] The circumstances and the interaction between civilians and police officers in the cases is not similar to this case. This is not a situation where the officer used gratuitous violence.

It was a dynamic and quick situation where Constable Kirby made an error in judgement. [ 43 ] The following sections review the legal tests for availability of a discharge. a. Best Interests of the Offender [ 44 ] A discharge should usually be considered only where person is of previous good character. There is no question of Constable Kirby’s character, but it is important for the public to know these details. I note first, his service record. In a frightening and dangerous incident in northern Manitoba in 2017, Constable Kirby and his partner saved a woman’s life.

The RCMP detachment in Wabowden, Manitoba received a call about a distraught woman who ran to the river with a rope. The officers rushed to the scene where they found the woman face down in the water unresponsive. The officers ran into the river, pulled her out and performed CPR. She had an extension cord wrapped around her neck, which the officers removed.

The woman regained consciousness due to their efforts, and Emergency Medical Services then flew her to The Pas for further medical treatment and she made a full recovery. [ 45 ] Below are comments from the letters of reference written by several colleagues that demonstrate Constable Kirby’s reputation and character: • One of the most diligent, proactive officers I have encountered in roughly 30 years of policing • Focused on public safety • Has always acted within acceptable policy, procedure and training standards • A leader who leads by example • A co-worker to whom others go for guidance • Trustworthy • Thorough • The remorse he feels is real • Despite carrying the heavy weight, he has continued to come to work everyday, ready and eager to serve his community

• Shows professionalism towards community members • Takes time to listen and understand a situation • Does not shy away from calls that may be higher risk or may hold greater responsibility and follow-up • Dedication to the work and the community is exemplary • Professional, courteous and proficient • Treats others with patience, understanding, full dignity and respect • Others’ safety is in the forefront • In 16 years, one of the best police officers I have worked with • Our unit’s “go to guy” (North District Crime Reduction/Enforcement Support Team) • Takes more precautions than the average police officer • I have responded to many high risk calls with him and he has never used excessive force nor display an improper choice of intervention tools • Mature, level-headed • Listens to both sides of a scenario to reach a conclusion best for all involved; not one to jump to conclusions or push his opinions on people • Patient and would not opt for use of force if it was not necessary • Fully and completely trust him • Since I have been his partner, I have never felt as secure and safe • Brings out the best in members • A mentor • Provides investigations of the utmost quality • Would trust him with my life [47] Some of the letters also discussed the impact of the shooting on Constable Kirby.

It has taken its toll over the past three years. Yet, one of his colleagues observed, “He has never acted arrogantly or angry about the events that occurred.” [48] In short, this Court has not seen such exemplary letters of character. b. Not Contrary to the Public Interest [49] The need for general deterrence is not a bar to considering a discharge. [50] One of the concerns might be that if Constable Kirby is discharged, the matter will be buried. That is not true for police officers.

As the Court outlined in Gabruch , and as counsel explained in this case, a police officer’s record of “findings of guilt” will be disclosed in any subsequent investigation and prosecution he or she becomes involved in, pursuant to the disclosure requirements set out by the Supreme Court of Canada in R. v. McNeil , 2009 SCC 3 . Defence counsel advised that this record of a discharge is disclosable for a period of 99 years.

Thus, there is a public record of this act. [51] There have already been significant impacts and collateral consequences of this offence. [52] This is a public process where Constable Kirby has had to come to court and pleaded guilty and heard submissions of the lawyers and then will attend public court to obtain my sentencing decision. [53] There has also been national media coverage of this case, which has informed the public of the offence, but has also caused Constable Kirby additional stress. [54] Finally, as I observed earlier in this decision, Constable Kirby’s actions in this case were very close to the line in constituting criminal conduct, and but for his statement and guilty plea, this matter would not be before me.

In all the circumstances of the offence and Constable Kirby, it would not be contrary to the public interest to discharge this officer. DISPOSITION [55] The fit and fair result in this case is that Constable Kirby should be discharged. Because of the consequences that he has already suffered from this incident, and the fact that there is no further rehabilitative, corrective or protective work that the officer should take, which the Crown concedes, an absolute discharge is appropriate in the circumstances.

[56] Costs and a surcharge in the amount of $102.00 are imposed, to be paid within 30 days. C.A. DEVINE, P.J.