IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  Mr. Read, today is the day of sentencing.  It has been a long time since this happened back in March of 2011.  We are now into mid-June of 2015.  I have received your two letters of expression of remorse for the consequences of this action and also outlining how your life has been totally devastated by virtue of the consequences of being charged and ultimately convicted of these offences.  You wrote two letters, one in March of 2015 and one in May of 2015. 

[2]           I can tell you that I certainly do sympathize with all of the dreadful changes in your life that took place since March of 2011.  I know that you lost your home, your job that you really loved.  You lost the trust and respect and admiration of your children, your friends, your family, and have had to deal with all of the consequences of having a life that was pretty good into a life that, really, has been very difficult. 

[3]           You have made many strides to deal with the surrounding devastation from your fall from grace.  You have, according to the letters, reached the stage where you are able to move on to a degree.  You still think about what happened, why it happened, and the effects your conduct had on yourself, your family, and your friends.

[4]           It was a difficult period of time that you went through in the last five years and that certainly is one of the things that I have to consider, will consider and have considered in deciding what the appropriate sentence should be.  You know, as probably your counsel has told you, that a Judge's responsibility in a sentencing such as this is to try to balance as best one can, the individual who is involved in the crime and the public who are offended and impacted by the crime.  It is a matter of balance and it is a difficult balance in any given case for a Judge to achieve.

[5]           You know that in this case your counsel has asked that the sentence be a Conditional Sentence Order meaning a jail term served in the community with the primary focus being on house arrest.  The Crown, on the other hand, has asked the Court on behalf of society to impose a sentence of between 18 months and two years less a day in actual jail.

[6]           The cases that both sides have submitted giving guidelines as to what type of sentence should be imposed in a case like this, range everything from a suspended sentence all the way up to eight years.  So the frame of reference is very wide.  The cases that are put to the Court are for guidance, for the principles that apply or can apply, to a case such as yours.

[7]           There is no such thing as cases that are like jigsaw puzzles, that this piece matches that piece and, therefore, you fit into a certain box and that is the sentence that you get.  The cases display a very wide range of sentences because every case is different.  The facts are different.  The accused is different.  The occupation of the accused is different.  The consequences to various people are different.  The crime itself that you are charged with can be committed in many, many different ways.

[8]           In your particular case, the charge, of course, that I have convicted you of is theft of approximately a kilo of cocaine from the exhibit locker of the RCMP in Burnaby.  That puts you in a category of a person who is guilty of a breach of trust in addition to the theft.  Now, there is a separate charge of breach of trust under the Criminal Code.  The Crown did not lay that charge against you, but certainly breach of trust is, according to the Criminal Code, an aggravating factor that I have to look at.

[9]           The case law that has been provided to me range, as I said, from a suspended sentence up to as much as eight years.  The upper level that I am looking at today is, the Crown's submission in your particular case, 18 months to two years minus a day.  The lower part I am looking to is Mr. Wilson's submission that a conditional sentence order would be appropriate. 

[10]        The case law provides us with a guideline not only of range of sentences because it is important that there be some parity in sentencing so that similar individuals who commit similar crimes in similar circumstances with similar backgrounds will end up with similar sentences.  So we do not want to have too far of a discrepancy between similar crimes, similar offences, similar circumstances, similar accused, but because there are such huge variables, that is why the sentence range is just so high.

[11]        What I look at, though, from the case law that is provided, is, are there any general principles that emerge that are applicable to everyone who is charged with theft from a position of trust that they occupied, in particular, people who were either peace officers, police officers, or civilians working in the police department?  We have a situation where the general guideline right through everything has been that unless there are exceptional circumstances actual jail should take place.

[12]        The theory is that the police are a public body that encompasses law and order and the public has to have trust in both the police and protection from breaking the law which the police are bastions of.  The public perception of a police officer is a person that has to have honesty, integrity, and unconditional faithfulness to maintaining the law and, when I say police officer, I should have said a police department.  The case law is very strict in terms of deciding that when it comes to sentencing a peace officer, a police officer, or someone in a position of trust who steals money or property, that deterrence and denunciation take the front seat and that rehabilitation and specific deterrence take the back seat.

[13]        In your particular case, I have no reservations in saying that, as far as specific deterrence is concerned, I have no concerns about you at all.  I do not believe for a moment that you will ever come before the courts again on a like crime or any crime, for that matter.  You are almost 60.  You lived your whole life without any criminal involvement.  You are a good family man, a hard worker, a conscientious and honest worker, a member of the community teaching sports, and also helped in raising three daughters and you have had a stable relationship for around 14 or 15 years.

[14]        You have never come before the courts on anything and the likelihood of you ever coming back again is very tiny.  I do not have to consider the issue of specific deterrence for you.  I am left, then, with two questions, one, what about rehabilitation for you, and two, the bigger question about denunciation and deterrence for the general public and, in particular, any members of the general public who might be so inclined, be they members of the general public or police officers, to steal things from the police department.

[15]        In terms of rehabilitation, I have had nothing by way of indications that you need any rehabilitation of any kind.  There were no psychiatric letters or psychological letters.  There is no drinking problem.  There are no mental health issues.  There are no financial problems.  There is absolutely nothing before me to explain why this all happened.

[16]        The best I can say is that, from what you told the RCMP at the time of the investigation, particularly right after the polygraph test, and what you had to say through your counsel, Mr. Wilson, is that there was a period of time when the audit department were as is colloquially called, "In Your Face" when they were conducting an audit of the drug locker that you were in charge of.

[17]        The audit had gone on for a couple of months in the general police station in other areas that were not relevant to you, but they came in for about a 10-day period into your space, that is, the exhibit locker.  While in there, you became very frustrated and angry and that was because they disrespected you, they were moving stuff all around, they were not keeping with protocols and, according to what you had said to the police at the time of the interrogation and then through your counsel, is that the frustration levels for you just got higher and higher and higher and the anger was there and that, in a moment of crazy passion, you took the drugs from one of the exhibit boxes.  You took it home and when you got home, you flushed it down the sink.

[18]        I am told by counsel that you did not return it the next day when, presumably, the passions had cooled a bit because, one, you had flushed it, and two, because you did not think you could secretly bring it back because the audit team were still there.  That is the only explanation that I have as to why this happened.

[19]        I then look at you as an individual and say, how does somebody who is raised in a very close-knit family end up with this bizarre behaviour on this particular day?  It truly stumps me.  Usually, and you will find in reading the cases, people have some backgrounds that lead up to this.  They have mental health issues, they have drug issues, they have relationship issues, they have depression, they have addictions, and then that sometimes leads to a conscious decision to steal things from police or their positions of trust.

[20]        Here, I do not have any of that.  You had a home, you had three daughters that you raised, you had a stable relationship, you had financial stability, you loved your job, people loved you, you were athletic, you were physically healthy other that, I think, bad knees, you had lots of friends in the community, you played soccer, you coached soccer, and travelled.  There is nothing that was so overwhelming in your particular life that would lead one to say, "I understand how this man lost his thinking for a moment and then did this."

[21]        You have said through your letter to me and through counsel and to the police that you do not understand how you could succumb to this.  Well, frankly, neither do I.  I am looking at reasons to try to make some sense out of why it happened and then look at avenues of rehabilitation if they are necessary, I do not see anything that I could possibly turn to to say, "This will help you rehabilitate yourself," because there does not appear on the evidence and submissions anything that needs direction.  It would not make sense for me to say, "Well, he needs rehabilitation because he has to treat an alcohol problem, a drug problem, a mental health issue."  There is nothing.

[22]        So rehabilitation and specific deterrence in your case are not considerations for me, although in the principles of sentencing, those are two things that usually and have to be considered.  Here, I have considered both of them, but find that there is nothing to be done or needs to be done insofar as your rehabilitation or specific deterrence is concerned. 

[23]        The main thing is general deterrence, denunciation of the crime, and the moral turpitude involving this particular crime.  Several things concern me about your behaviour is that you did steal the kilo of drugs from the exhibit box.  I should say that the box that the exhibits were in, were destined to be destroyed.

[24]        There was a time, and is not clear as to when that time was, that you removed that kilo of cocaine and took it home.  What happened was when the audit team were there, you were there, too, and they described that as they were dealing with certain boxes, that you were becoming more and more agitated as they got closer to the box in question.

[25]        According to the Admission of Facts, what happened is they went for a long coffee break and when they came back, some of the boxes that they had already opened, some 10 or 12, had been re-taped and when they came back, they reopened them because they were suspicious.  That is when you became more agitated with what was going on.  The concern that raises with me is, first of all, through your counsel, you say you could not return the items because (a) you had flushed them down the sink and, second, that you could not get them back in there without anyone seeing.  However, when you go back there the next day when the audit is continuing, you do not fess up.  You do not say to somebody, "You know, I did steal.  You are going to find out"

[26]        You wait and you probably wait and hope that they are not going to find it.  As they get closer and closer to the box, your agitation grows, but still you do not come clean and say, "Look, this is what I did.  I am sorry."  They then find the missing drugs and then they ask you and your two coworkers about them, your suggestion was, well maybe you misplaced them in some other box by mistake or by accident.

[27]        So you help them to search the locked vault to see if maybe on one of the shelves you had mistakenly placed those missing drugs.  So you continued a ploy, as it were, or a charade to pretend to be looking together with them for the missing exhibit.  When the police finally come to you and say, "You know, you are coming in for a polygraph along with your other two associates," you do not confess or admit to anything until quite late after the polygraph that you failed and the results are given to you.

[28]        Now, everyone has a right to remain silent.  There is no obligation to come clean.  There is no obligation to tell the police anything.  You have an absolute right to remain silent.  However, when you do talk, when you do choose to make a statement, it is a statement when there is an opportunity to come clean and to be honest.  But when the opportunity was there after the police accosted you during the polygraph to come clean, you decided again that you were going to hide and not come clean.  You made up stories and pretended to be a totally innocent participant.

[29]        After you were in effect cornered by what you thought was the infallible nature of the polygraph, it is at that point in time that you admitted your involvement, again, saying that it was sudden action, it was unplanned, you do not know why you did it and you cannot explain it even to yourself.

[30]        So that there were a number of times along the way where, if truly it was crime of unexplained momentary lapse of reason that you took it, there were still times after that that you had to clear the air, to either get it back, to come clean and say you took it, face the music, take responsibility, but you did not, not until you were in a corner and realized that the jig was up.  So I have to consider that.

[31]        The position that you had with the RCMP was that of a special constable appointed under the RCMP Act and the Police Act.  Your lawyer has said that your authorization or designation as a Special Provincial Police Constable was restricted to dealing with exhibits in the RCMP police department in Burnaby.  Your lawyer argues that you are not really a police officer as defined under those two Acts, but rather a special constable.  He says that with that designation, your punishment should be less because you are not clothed with all of the full surroundings and reputation of a full-fledged RCMP member. 

[32]        The difference is a subtle difference as to whether you are a peace officer or a police officer.  In terms of the public viewing it, there would be no distinction made by them whether you were an RCMP member or whether you were a civilian employed by the RCMP or whether you were a special police constable.  As far as the public was concerned, the perception that everyone would have of you was that you were a member of the RCMP. 

[33]        In terms of a Court, though, and looking at your particular position, it does have a subtle difference that should be accounted for.  I am not prepared to make the determination of how one should end the dance on the head of a pin looking at the RCMP Act, the Police Act, and your duties to say you are a peace officer or you are a police officer.  I am going to give you, in a sense, the benefit of the doubt and say that if you were a peace officer as opposed to police officer, you should be entitled to somewhat less, but not significantly less, punishment than a full-blown RCMP member and I will take that into consideration in the sentencing, ultimately.

[34]        You first had worked in the jails in Burnaby as a guard and then you moved over into the position, I think, since 1983 as the full-time exhibit officer with the RCMP in Burnaby.  You were the man in charge.  You had two people working with you.  One was also a Special Constable and the other was a civilian, but you were the man in charge.  Nobody could come into the exhibit office, nobody could be in the exhibit office, and nobody could leave the exhibit office without your presence.  Everyone had relied upon you to run the place, to be honest, and make sure that security was there.

[35]        The position allowed you to be in a position to take whatever you wanted.  Interestingly, over the many, many years you were there from 1983, nothing was ever taken and nothing untoward has been suggested.  People thought you were efficient, you were a congenial co-worker.  You were in a position when this happened at an age of getting close to 65 when you would have had a full pension and you would have retired, but that was never to be.

[36]        I look at the cases to see if there is somebody like you, somebody committing crimes similar to you, or committing this type of crime similar to you, it is hard to find any cases right on all fours.  The reason is, as I said, every case is very different.

[37]        The defence says that the closest case that comes to yours is the case of R. v. Demers, [2012] N.S.J. No. 130.  In that case, Mr. Demers was given six months in jail, but he had some background differences than yours.  He was using marihuana daily, he was drinking excessively, he was depressed, he was unable to sleep and the result was that over a period time, more than once, actually, he did steal marihuana from the police department.

[38]        Counsel in that case had asked for a conditional sentence.  The Court in that case rejected that request.  Reading from the Judgment in Demers at page 4, paragraphs 11 through 16, the Judge had this to say:

[39]        The Judge went on to say, and it is relevant to your case, at paragraph 12 and 13:

[40]        I adopt the reasoning I have read from Provincial Court Judge Scovil in the Demers case as far as looking at whether a Conditional Sentence in your case is appropriate and I have come to the conclusion that it is not.

[41]        The question, then, is what should the period of time in hard jail be for you.  As I have indicated, the case that your counsel has relied on that is most close to yours is the Demers case, but he did have certain explanatory reasons that were brought into play and that was his addiction of using marihuana daily, his excessive drinking, his inability to sleep and his depressed state.  These are things that I do not have in your case to say that there is something there to mitigate the amount of time you should be given, compared to the range in most of the other cases or indeed to the six-month period that Demers was sentenced to.

[42]        On the other hand, the Crown's submission, although certainly based on case law and the conditions and circumstances of this case, are reasonable a sentence of 18 months to two years less a day.  The case law does provide the guidelines and then the precedents that show me some range that can legitimately be imposed and still fall within a parity sentence range.

[43]        I have to remember that the amount you took was a full kilo, roughly, according to the expert evidence, anywhere from $22,000 to $44,000 of value on the street and that you did not sell it on the street for a profit.

[44]        Your lawyer says that I should give you credit or at least consideration for pleading guilty.  The Crown says, "Well, you did not plead guilty.  You admitted the Crown's case and a guilty verdict was found."  In fairness, I think, strategically or tactically, Mr. Wilson had you do that rather than plead guilty so that his opportunities for a possible appeal would stay open.  It would be more difficult to appeal a conviction if there was a guilty plea.  So I think, technically, that was the reason behind the admission of the Crown's case and then inviting me to find you guilty, as opposed to an actual guilty plea.

[45]        Guilty pleas in any case, are only used as a mitigating factor if it is a guilty plea at the earliest opportunity.  So even if technically one could say, "Well, it was tantamount to a guilty plea," it certainly was not at the first reasonable opportunity.  It was almost five years after the event.  So I am not going to use your plea -- or at least consenting to the finding of guilt, as being a mitigating factor for you.

[46]        At the end of the day, it is my sentence to you, Mr. Read, that you have to go to jail.  You have to go behind bars.  However, the Crown's 18 to two years less a day, although certainly is within the ballpark, in all of the circumstances of this case, I am sentencing you to 14 months in jail.  There will be no probation afterwards.  There is nothing that needs to be done.  It is a crime that was committed for which you have to do the time now.  I have taken into consideration all that you have suffered already and will suffer but as I told you at the outset, the case law and the law demands that denunciation and general deterrence be front and centre of any sentencing.  So that is the sentence. 

[47]        MS. BOBLIN:  Thank you, Your Honour.  There are no ancillary orders that need to be made?

[48]        THE COURT:  No.  All right.  We will adjourn.