IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Kenrick Vernon Whitney (“Whitney”), has entered a guilty plea to a charge that on or about May 30, 2013 at Richmond, British Columbia, he did, in connection with his duties as a member of the Royal Canadian Mounted Police (“RCMP”), commit a breach of trust by stealing money contrary to s. 122 of the Criminal Code of Canada (“the Code”).

[2]           Whitney must now be sentenced for his criminal conduct.

[3]           An Agreed Statement of Facts was filed setting out the circumstances which led to the breach of trust by Whitney.

[4]           In November 1997, Whitney swore an Oath of Office as a constable in the RCMP. The oath of office taken by Whitney is set out in s. 14 of the RCMP Act and reads as follows:

[5]           The RCMP Anti-Corruption Unit (“ACU”) commenced an investigation of Whitney in December 2011 after receiving information from an informant that Whitney was in possession of cocaine in early July 2011.

[6]           In July 2011, Whitney was assigned to the Vancouver Federal Drug Section as an exhibit person in Project E-Polis in which a large quantity of cocaine had been seized.  ACU investigators suspected Whitney may have been in possession of cocaine in July 2011 by misappropriating some of the cocaine seized in Project E-Polis.

[7]           It was ultimately determined by the ACU investigators that there was no evidence to establish that Whitney ever misappropriated any cocaine from Project E-Polis. Furthermore, ACU investigators were unable to establish that there was any evidence that Whitney was ever in possession of cocaine in July 2011.

[8]           However, it was the ACU investigation into the suspected cocaine connection to Whitney that led to Whitney’s breach of trust as an RCMP member.  ACU investigators decided to present Whitney with two scenarios in an undercover police operation for the purpose of determining Whitney’s integrity and ability to conduct lawful and ethical investigations involving illicit drugs and exhibits.

[9]           It was the second scenario that led to Whitney’s breach of trust on May 30, 2013. The admissions of fact set out the unfolding of scenario two as follows:

[10]        Whitney was born in Montréal in July 1965. He is now 49 years old. Whitney is the father of a son and a daughter. His daughter was born in 1994 and his son was born in 2007. The daughter currently lives in Alberta.  The son is residing in the Lower Mainland and Whitney sees his son approximately once per week.

[11]        Whitney joined the RCMP in 1997. He was first stationed in Kelowna before joining the Vancouver Drug Squad section of the RCMP in 2001.  In 2011, Whitney was transferred to the Richmond detachment.  He was eventually transferred to the Vancouver International Airport RCMP detachment, where he was stationed in May 2013.

[12]        On June 11, 2013, Whitney was arrested for the offence of breach of trust.  On June 12, 2013, he was suspended with pay until February 5, 2014, when he was then suspended without pay.  In August 2014, Whitney resigned from the RCMP.

[13]        With his resignation from the RCMP, the financial loss to Whitney has been described as “tremendous”.  The calculated loss factoring in income and lost pension is approximately $2 million.

[14]        Since his suspension, Whitney decided to repair the damage he caused to society as a result of his breach of trust by opening a personal training business.  His personal training business is one of three designated training centres in the Lower Mainland for the “Training for Warriors” program.

[15]        The Training for Warriors program offers troubled youth, men and women the opportunity to promote their self-worth through fitness. The program is primarily based out of the United States, and with his certification for this program, he will be required to travel to the United States on occasion for training purposes.

[16]        The impact of Whitney’s personal training business, and the Training for Warriors program, on his rehabilitation was expressed by Whitney in his apology letter, which in part says:

[17]        Whitney was of the opinion that in the months leading up to his breach of trust that he was experiencing periods of sadness.  Whitney was also of the opinion that there were other stressors in play relating to both his work and personal life at the time of the breach of trust.  Whitney described feeling “harassed, belittled and treated adversely” by a superior officer.  Whitney described experiencing personal problems in his relationship with his son’s mother and his girlfriend. Unable to effectively deal with these stressors, Whitney says that he fell into a depressive state.

[18]        Following his breach of trust, Whitney sought medical assistance for his depression.  One of his treating doctors referred Whitney to Dr. Stephen Schertzer for a psychiatric assessment.  A report was prepared by Dr. Schertzer dated February 16, 2014 for the referring doctor.  This report formed part of the materials filed by Whitney.

[19]        It was noted by Dr. Schertzer that the information provided by Whitney was “based on his self-report and may therefore not be free of bias.”  In relation to Whitney’s Mental Status Examination, Dr. Schertzer provided the following opinion which in part notes:

[20]        In relation to Whitney’s Diagnostic Impression, Dr. Schertzer provided the following opinion which in part notes:

[21]        Whitney continues to take prescribed medication for depression and anxiety.  He also was engaged in counselling on a one-to-one basis for a period of time.  He has since ceased counselling, though is open to receiving additional counseling as part of his probation order.

[22]        Whitney does not have a criminal record. However, Whitney does have a court history.  In October 2003, he was sentenced to a six-month conditional discharge for an assault that occurred in November 2002 arising out of a dispute over a parking spot when Whitney was off duty, though he was wearing an RCMP issued jacket at the time of the assault.

[23]        The Crown takes the position that the imposition of a suspended sentence would meet the principles of sentencing contained in section 718 through section 718.2 of the Code.  The Crown is opposed to the imposition of a conditional discharge, submitting that a discharge would not be in the public interest.

[24]        The Crown submits that a proportionate sentence can only be determined by balancing the aggravating and mitigating circumstances in this case.

[25]        The Crown submits that a breach of trust is a deemed aggravating feature by operation of s. 718.2(a)(iii) of the Code which reads as follows:

[26]        The Crown submits that Whitney’s breach of trust would have “an immediate and detrimental impact on the public’s perception of the [justice] system. A right minded citizen might very well wonder how true justice can be dispensed when its officials breach the very laws that they are sworn to uphold.”

[27]        The Crown also submits that the case is aggravated by the fact that Whitney’s conduct was a serious and significant deviation from conduct expected of police officers.  The Crown submits that on this point, there is a need for police compliance with the Rule of Law.

[28]        The Crown submits that the case is aggravated by the inference that apparently Whitney believed his conduct would go undetected.  However, the Crown concedes this factor is somewhat diminished by the fact that Whitney safeguarded most of the marked currency bills planted by the ACU investigators.

[29]        The Crown submits that Whitney must have known, as a police officer, of the immediate and potential consequences resulting from his breach of trust.

[30]        The Crown submits that while Whitney does not have a criminal record, the fact that he received a conditional discharge in the past must have, or should have been something running through his mind at the time he took the money from the satchel.

[31]        The Crown submits that while this was a crime of opportunity, this does not reduce the severity of his conduct.  That conduct included misinformation that Whitney inputted into PRIME respecting the amount of cash seized from the satchel.

[32]        The Crown submits that the guilty plea is a significant mitigating factor.

[33]        The Crown submits that Whitney’s conduct did not derail any ongoing prosecution, nor did Whitney profit from his criminal behaviour.

[34]        The Crown submits that while Whitney’s resignation was probably inevitable, it should still be factored as a mitigating circumstance.

[35]        The Crown submits that in further mitigation, Whitney has suffered from the stigma of public scrutiny arising from his offending behaviour.

[36]        The Crown submits that it is mitigating that Whitney’s mental health was the likely cause of his criminal behaviour.

[37]        The Crown submits that the primary sentencing principles in cases of breach of trust by a police officer are denunciation and deterrence. In support of that position, the Crown provided a number of cases (Appendix A) that demonstrate that police officers who commit a breach of trust can, at the low end, receive discharges, and at the high end, significant jail time.  Again, each case is dependent on the circumstances of the offence and the circumstances of the offender.

[38]        The Crown submits that Whitney should also be placed on probation for a period of 18 months with some relatively standard conditions, but with the added conditions that he take counselling as directed by his probation officer and that he perform a substantial number of community work service hours.

[39]        Whitney submits that a conditional discharge is appropriate in all of the circumstances.

[40]        In relation to the aggravating feature that Whitney was in a position of trust or authority, Whitney submits that the court ought not to rely on S. 718.2(a)(iii) of the Code as a deemed aggravating factor where the very offence that Whitney has pled guilty to was the breach of trust.

[41]        Whitney submits that the aggravating factor of being in a position of trust or authority is built into the very offence itself.  Whitney submits that s. 718.2(a)(iii) of the Code should be “reserved for those offences where the accused was in a position of trust, but was not the actual offence for which he was convicted eg. Fraud or theft.”

[42]        Whitney submits that the mitigating factors are significant, including: Whitney entered a guilty plea and forfeited his right to a trial; his remorse; his loss of employment and the loss of significant income; loss of friends and family; depression; Whitney has received counseling and medical intervention to assist with his rehabilitation; and, Whitney made full restitution of the $650, including a return of 10 of the original 13 bills planted by the ACU investigators.

[43]        Whitney submits that there are other factors which the court should take into account, including: greed was not a factor; the public stigma arising from the charge and the attendant publicity; significant loss of reputation from his peers, family, and friends; he has not been indemnified for his legal fees; and, there is no true “victim” resulting from his breach of trust.

[44]        Whitney submits that proportionality is a key principle in determining a fit and proper sentence for his offending behaviour.  Whitney submits that he has been specifically deterred from committing any further offences.  In relation to general deterrence, Whitney submits that it should be given less importance in light of his mental illness (depression) at the time of his breach of trust.

[45]        In the alternative, Whitney submits that if the court finds that denunciation and deterrence ought to be the principal factors in sentencing him, that a properly crafted conditional discharge can still satisfy those principles without offending the public interest component of the discharge provisions contained in the Code.

[46]        Whitney submits that rehabilitation ought to be afforded the most weight in determining a fit and proper sentence. In making this submission, Whitney submits that a conditional discharge will allow him “to continue forward in his life in a positive manner, despite the difficulties caused as a result of this offence. It will also provide him with the counselling he may need to become fully rehabilitated and with the support he needs to heal.”

[47]        Whitney submits that it would be in his best interest to be granted a conditional discharge, as it would permit him to travel to the United States to pursue his personal training business, and permit him to travel to the United States with his children.

[48]        Whitney submits that while he was granted a conditional discharge in 2003, that factor alone should not be an impediment to a conditional discharge in the particular circumstances of this case.

[49]        Whitney submits that it would not be contrary to the public interest “to grant a discharge to someone who suffered from depression at the time of the offence. The principles of deterrence and denunciation have been satisfied by the court process. It is not necessary to saddle Whitney with a criminal record in order to deter him or others from committing like offences.”

[50]        Whitney provided the court with cases (Appendix B) in which peace officers were granted conditional discharges after committing a criminal offence in situations where they suffered from mental health issues at the time of the offending behaviour.  Whitney submits that his mental health issues existent in May 2013 should weigh heavily in his favour in supporting the granting of a conditional discharge.

[51]        A breach of trust by a public officer is defined in s.122 and reads as follows:

[52]        It is noteworthy that this section specifically imposes a broader liability upon public officials than that which would apply to private individuals who were involved in the same type of activities.

[53]        The sentencing principles relevant in this case are s. 718, s. 718.1 and s. 718.2 of the Code which read as follows:

[54]        The deemed aggravating factors as contained in s. 718.2(a) are not meant to be exhaustive.  Other aggravating factors as developed by the case law will still apply.

[55]        In carrying out the objectives of s. 718 of the Code, a court is required to ensure that a sentence is ultimately proportionate by operation of s. 718.1 of the Code. In achieving a proportionate sentence, s. 718.2 requires that a court take into account the relevant aggravating and mitigating circumstances. In this assessment, the court must also take into account the need to avoid unjustified disparity and to apply the principle of restraint.

[56]        The power to grant an absolute or conditional discharge is found in s. 730(1) of the Code, which reads as follows:

[57]        The Court of Appeal in R. v. Fallofield (1973), 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450 at pp. 454 - 455 established eight principles that should guide a court in determining whether or not a discharge is appropriate in any given case as follows:

[58]        In considering whether or not a discharge should be granted, a court may consider whether or not an accused has been granted a discharge on a previous occasion (R. v. Tan (1974), 1974 CanLII 1608 (BC CA), 22 C.C.C. (2d)184 (B.C.C.A.) considered R. v. Small, 2001 BCCA 91 at para. 11). 

[59]        It is a significant aggravating factor that Whitney’s breach of trust took place while he was on duty as a police officer with the RCMP.

[60]        It is an aggravating factor that 20 minutes after Whitney had seized the satchel containing the $850, he entered into his PRIME Report “cash” without indicating the amount of cash that he had seized. On June 1, 2012, Whitney again accessed PRIME to alter his report of the incident involving the $850 by indicating he had seized “$200 cash”.

[61]        PRIME is an electronic records management system maintained by PRIME Corporation which contains police files and investigation related information.  PRIME allows police agencies also using PRIME in the Province of British Columbia to share information.  It is vital that police officers who have access to PRIME utilize this resource in a proper manner.  Whitney’s access of PRIME on June 1, 2012 to alter his initial PRIME Report was improper. His improper conduct relating to PRIME is an aggravating factor.

[62]        It is an aggravating factor that Whitney’s actions by altering his PRIME Report would, by inference, establish that he believed that his conduct in misappropriating the money would be undetected.

[63]        It is an aggravating factor that Whitney’s conduct was both a serious and significant deviation from conduct expected of police officers.

[64]        It is an aggravating factor that, while Whitney does not have a criminal record, one would expect that he would have been, or should have been, aware at the time he misappropriated the money, of his potential for personal legal risk, as he had received a conditional discharge in 2003.

[65]        It is a significant mitigating factor that Whitney entered a guilty plea to the breach of trust offence. The guilty plea establishes the acceptance of responsibility by Whitney.

[66]        It is a mitigating factor that Whitney has resigned from the RCMP.  This loss of employment has resulted in Whitney suffering a significant income loss in relation to both salary and pension.

[67]        It is a mitigating factor that Whitney has made full restitution to the RCMP for his breach of trust.

[68]        It is a mitigating factor that Whitney has been subjected to a significant degree of stigma arising from publicity relating to his breach of trust. He has lost the support of friends and family.

[69]        It is a mitigating factor that Whitney, in the face of the hurdles arising from his breach of trust, has established his personal training business and he is only one of a few fitness trainers to be certified for the Training for Warriors program.

[70]        It is a mitigating factor that Whitney was likely suffering from a depressive state at the time that he committed his breach of trust.

[71]        Police officers are not just ordinary people; rather, they are people holding special authority in which the public trust is paramount. The British Columbia Court of Appeal in R. v. Shaw, R. v. Glass (1968), 1968 CanLII 1011 (BC CA), 66 W.W.R. 626 at para. 5 informs on the approach to sentencing a police officer who has committed a criminal act as follows:

[72]        In R. v. Cusak (1978), 1978 CanLII 2283 (NS CA), 41 C.C.C. (2d) 289 at para. 14 (N.S.S.C.), the importance of the public trust component and the unique knowledge police officers hold with respect to consequences of crime is addressed as follows:

[73]        Whitney has argued that the court ought not to rely on s. 718.2(a)(iii) of the Code as a deemed aggravating factor where the very offence that Whitney has pled guilty to was the breach of trust.

[74]        In R. v. Cook, 2010 ONSC 5016 (CanLII), Hill, J. found the accused police officer guilty of serious drug offences as well as a breach of trust relating to the drug offences. The facts of the Cook case are distinguishable, but the decision is still useful in relation to that Court’s finding that s. 718.2(a)(iii) of the Code was an applicable consideration in sentencing the accused.  At para. 38 the Court had this to say:

[75]        In this case, Whitney’s breach of trust occurred when he was in a position of trust or authority.   Considerable police resources were deployed in the investigation of Whitney.  These resources are publicly funded.  More importantly, Whitney’s breach of trust would victimize the public’s perception of the justice system. I agree with the position of the Crown in their submission that a “right minded citizen might very well wonder how true justice can be dispensed when its officials breach the very laws that they are sworn to uphold.”

[76]        Whitney has emphasized that his mental health issues at the time he committed the breach of trust would justify the imposition of a conditional discharge. The materials provided to the court would certainly support a factual foundation that Whitney was likely suffering from a depressive state of mind at the time he committed the breach of trust.

[77]        However, I am not persuaded that the materials establish that Whitney was suffering from a diagnosed mental illness.  Dr. Schertzer’s report notes that his report was based on self-reporting by Whitney and that the report may not be free of bias.

[78]        In addition, Dr. Schertzer did not note any psychotic thinking by Whitney and found that Whitney’s insight was “relatively good and his judgments seem to be good and completely at odds with whatever he did to merit the charges that he is now facing.”

[79]        In relation to the Diagnostic Impression, I found it concerning that Dr. Schertzer noted in his report that Whitney “has been questioning himself over and over as to why he did whatever he did (which he would not disclose during the course of the interview)”.

[80]        I would have expected that Whitney would have been forthcoming with Dr. Schertzer about his depressive state being the underlying cause of his breach of trust, rather than questioning his personal motivation for committing the breach of trust. Certainly Whitney’s actions in relation to the misinformation inputted into his PRIME Report would support the inference that this judgment was not overborne by his perceived depressive state.

[81]        Whitney emphasized that the circumstances in R. v. Edmunds, 2012 NLCA 26, are not dissimilar to his circumstances. In Edmunds, the Accused was a correctional officer and on duty when he misappropriated money from two inmates in the lockup. In addition, property forms in relation to monetary belongings were altered by Edmunds.

[82]        Edmunds was charged with one count of breach of trust and two counts of theft under $5000. Upon the application of Edmunds, and with the support of a psychiatrist and the consent of the Crown, Edmunds’ case was transferred to the Mental Health Court (a Division of the Provincial Court). The Mental Health Court is described as a specialized Court providing increased level of support, both medical and community-based, to accused persons.

[83]        Entry into the Mental Health Court requires a diagnosis of one or more of a group of specific mental illnesses and a nexus between the illnesses and the offence.

[84]        Edmunds pled guilty to the charges and was sentenced to a conditional discharge coupled with a 24-month period of probation.

[85]        The Crown appealed, arguing that a conditional discharge was not a fit sentence. In dismissing the appeal, the Court of Appeal noted that the treating psychiatrist was of the opinion that Edmunds suffered from a “major depressive disorder and acute stress disorder”. The psychiatrist was also of the opinion that Edmunds’ offending behaviour was connected to his “mental illness”.

[86]        The Court of Appeal noted the specialized nature of the Mental Health Court and the benefit that the Mental Health Court provides to individuals entered into that Court program at paras. 39 through 41 as follows:

[87]        Whitney has entered his guilty plea in the regular division of the Provincial Court of British Columbia and not a specialized court. In addition, the medical reports and clinical records filed by Whitney identify various stressors which were likely in existence in March of 2013, including sadness and a depressive state, but the medical reports and clinical records do not identify a specific mental illness as was the case in Edmunds. 

[88]        In addition, Edmunds had no prior dealings with the criminal justice system, unlike Whitney.

[89]        Whitney has submitted that the imposition of a suspended sentence would impact his ability to travel to the United States for his personal training business or to take his son on a vacation to Disneyland.  Whitney submits that impact would be contrary to his interest and contrary to the public interest in light of the significant personal steps taken towards his rehabilitation and reformation.

[90]        It may well be that American authorities view a suspended sentence differently from a discharge, as a suspended sentence does result in the registration of a criminal record.  However, I was not provided with any information from American authorities to confirm that Whitney would be denied entry into the United States as a result of the registration of a criminal record.

[91]        In addition, I was not provided with any information from American authorities  indicating that there were no alternate processes available to Whitney to seek entry into the United States by way of pre-clearance.

[92]        I conclude that Whitney’s offending behaviour in his commission of the breach of trust is serious. This is particularly so as he was on duty at the time of the commission of the offence.

[93]        Whitney’s actions by his improper use of the PRIME system makes his conduct surrounding the breach of trust all the more egregious.  A court should not look with leniency when a police officer accesses sensitive police investigation systems to either advance or to disguise his or her criminal activity.

[94]        Additionally, Whitney’s prior dealings with the criminal justice system when he received a conditional discharge in 2003 for an assault weighs against the appropriateness of imposing another conditional discharge.

[95]        While I take into account Whitney’s depressive state of mind in March 2013, I do not find that his depressive state of mind sufficiently explains his conduct when he committed the breach of trust.  His criminal behaviour appears to be motivated by  opportunity.

[96]        While the imposition of a conditional discharge may well be in the best interests of Whitney, I am not satisfied that the imposition of a conditional discharge would be in the public interest.  The message must be clearly sent to police officers that when they commit a breach of trust while on duty, that any sentence that is imposed requires that deterrence be paramount to preserve the public faith in the integrity of the justice system.

[97]        Accordingly, I impose a suspended sentence coupled with a probationary period of 12 months.  The following conditions of probation shall apply:

[98]        The victim fine surcharge shall apply and I will hear from counsel in          relation to time to pay the victim fine surcharge.