IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Cst. Bruce Lofroth is charged with one count as follows:

[2]           The Crown proceeded by Indictment and Cst. Lofroth elected to be tried in Provincial Court.  Cst. Lofroth entered a plea of guilty to the charge and now appears before the Court for sentencing.

[3]           Constable Lofroth is a member of the Terrace RCMP.  He was on duty on May 28, 2014 when he was called to attend at an altercation between a male (S) and a female (D) in downtown Terrace.  Constable Lofroth placed S under arrest and following a struggle secured S in handcuffs, face down on the ground.  Constable Lofroth then struck S on the right side of his head with his fist.  When S got up to his feet Constable Lofroth pushed him into the back of the police vehicle.  Constable Lofroth admits that the punch and the subsequent push constituted an assault on S.

[4]           Filed as exhibit 1 in this case is an “Agreed Statement of Facts” that set out the circumstances of the incident that occurred on May 28, 2014. The Admissions read as follows:

[5]           The Crown submits that Cst. Lofroth should be sentenced to a suspended sentence of probation for a term of one year.  The Crown further submits that terms of the probation order should include conditions of counselling and community work service hours.

[6]           Defence counsel submits that Cst. Lofroth should be sentenced to a conditional or absolute discharge under s. 730(1) of the Criminal Code.

[7]           The significant difference between the positions of the parties is that a suspended sentence will result in a criminal record for Cst. Lofroth whereas a discharge will not result in a criminal record.

[8]           Cst. Lofroth is 53 years old and was born in Dawson Creek.  He lived in Terrace from a young age and graduated from Grade 12 in this community.  He studied Criminology at Camosun College in Victoria in 1986/87.  He joined the Victoria Police in 1987 where he was a Constable engaged in General Duties.

[9]           In 1995 he joined the RCMP and was stationed to Prince Rupert.  He is currently a Constable with the RCMP stationed in Terrace and has been in this community since 2000.  He has been a member of the General Duties Section since transferring to Terrace.

[10]        Cst. Lofroth was also a member of the RCMP Emergency Response Team (“ERT”) from 1996 to 2014.

[11]        He is currently on Administrative leave and assigned to desk duties in Terrace. 

[12]        As a result of discipline sanctions under the RCMP Act for use of excessive force, Cst. Lofroth has been penalized approximately $2,000.00 from his pay, lost 8 days of leave time and has been removed from the ERT on a permanent basis.

[13]        Cst. Lofroth does not suffer from any physical or mental health issues.

[14]        Cst. Lofroth is a family man who is active in a number of activities including hunting, fishing, playing guitar and the sport of jujitsu.  He is married and has two children.

[15]        A number of letters of character were submitted on behalf of Cst. Lofroth.  The letters are from former police colleagues as well as long-time friends.  Every letter notes that the writer is aware of the assault charge and the circumstances of the offense.  They describe him as a reliable and dependable person.  The letters also say that he is of good character, helps others in need, is generous with his time and resources and has a strong work ethic. 

[16]        The victim S submitted a Victim Impact Statement to the Court.  In the statement S describes that he suffers from Fetal Alcohol Syndrome Disorder (FASD) and was hospitalized as a result of the incident.  He says he struggles with headaches in school.

[17]        Photographs of S were also admitted.  The photographs show extensive bruising to S’s face.  His right eye appears to be swollen shut.  The Crown concedes that it is not possible to establish that the injuries occurred solely as a result of the assault. 

[18]        Section 266 of the Criminal Code provides that “everyone who commits an assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years”.  In this case the Crown proceeded by way of Indictment.

[19]        Section 718 of the Criminal Code sets out the fundamental purpose of sentencing and the objectives to which the purposes may be achieved:

[20]        Section 718.1of the Criminal Code sets out a fundamental principle of sentencing.  In this regard, any sentence imposed must be proportionate to the gravity of the offence and the degree of offender responsibility. Accordingly, this court must impose a sentence that is proportional to the seriousness of the offence and the degree of offender responsibility.

[21]        The Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13 indicated that the sentencing principle of proportionality is “intimately tied to the fundamental purpose of sentencing - the maintenance of a just, peaceful and safe society through the imposition of just sanctions.”  The Supreme Court further held that the proportionality principle ensures the imposition of just sanctions by firstly, ensuring that a sentence “reflects the gravity of the offence.  This is closely tied to the objective of denunciation.  It promotes justice for victims and ensures public confidence in the justice system.”  Secondly, it ensures that a sentence “does not exceed what is appropriate, given the moral blameworthiness of the offender.  In a Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.”

[22]        Section 718.2 of the Criminal Code requires a sentencing court to also consider the following principles:

[23]        In R. v. Berner, 2013 BCCA 188 at para. 9, the British Columbia Court of Appeal indicated that the “purpose of sentencing is to protect the public through sanctions a court imposes upon a person found guilty of committing an offence. Each codified objective of sentencing is designed to further the protection of the community”.

[24]        In the circumstances of this case, denunciation and deterrence, both general and specific, are the paramount sentencing considerations.  Through the sentence that this court imposes, this court is tasked with expressing society’s abhorrence and sending a message to other officers that assaultive conduct will result in consequences.

[25]        This principle is referred to in the Nova Scotia Supreme Court in the case of R. v. Cusack (1978),41 C.C.C. (2d) at page 293 where the Court states:

[26]        In the case of R. v. Shipley 2015 BCPC 276 Judge Harris states at paragraph 20:

[27]        I also agree with comments of Judge Harris at paragraph 23 of the Shipley case where he says:

[28]        The guilty plea in this case is a mitigating factor.  I also accept that in this case the plea of guilty is an expression of remorse by Cst. Lofroth for his assault on the victim.

[29]        Cst. Lofroth has been penalized for his actions through the RCMP discipline process.  As a result of the discipline proceedings Cst. Lofroth has suffered professional and financial adverse consequences.

[30]         I accept that a further mitigating factor in this case is attention that has been generated in the media and on the internet as a result of the wide distribution of the cell phone camera viewing of the incident.  The cell phone video only captures the final chapter of the incident showing Cst. Lofroth striking the victim on the side of the head and pushing him into the police vehicle.  It does not show the events that took place just before the assault in the time Cst. Lofroth separated the victim from the female and the victim striking Cst. Lofroth several times. 

[31]         In assessing the weight to be given to the media coverage as a mitigating factor I agree with the words of Judge Koturbash in R. v. Mantler, supra, where he wrote at paragraph 11:

[32]        In the Mantler decision, the Court was sentencing an RCMP officer for the offence of assault causing bodily harm.  The circumstances surrounding the media coverage in that case were more extensive and invasive and where the Court found that “…many of the negative postings will continue to haunt him (Cst. Mantler) forever.”

[33]        Cst. Lofroth does not have any criminal record.

[34]        Cst. Lofroth has been a peace officer for almost 30 years.  No doubt he has engaged in thousands of interactions with the public in his duties as a peace officer in a professional manner.  Sgt. McKenna (now retired) writes a strong letter of support for Cst. Lofroth.  He has known Cst. Lofroth since 2000 and worked with him for a number of years in Terrace.

[35]        In his letter Mr. McKenna states the following:

[36]        The victim, who was 17 years of age at the time of the assault, was clearly in a vulnerable and defenceless position when he was struck on the head.  The victim was lying on the ground on his stomach, face down, with his hands cuffed behind his back.

[37]        The cell phone video clearly depicts Cst. Lofroth cocking his arm back, bent at the elbow, and punching the victim in the head.  In my view, it cannot be said that the blow was a reflex or non-deliberate act.  I am mindful of the difficult nature of the arrest and the struggle that took place to subdue the victim.  I am also mindful of the fact that the victim struck Cst. Lofroth several times during the arrest process.  However, it is my view the facts of the assault in this case are serious.

[38]        Cst. Lofroth was not in any danger once the victim was handcuffed and lying on the ground.  Furthermore, no other peace officer or member of the public was in danger once S was fully handcuffed and on the ground.

[39]        In the case of R. v. Bottrell, 1981 CanLII, the British Columbia Court of Appeal dealt with a case where a police officer kicked a prisoner.  Mr. Justice Seaton stated at para. 4:

[40]        The victim was punched in the head where there is a risk of serious injury.

[41]        Cst. Lofroth is a veteran police officer with 30 years of experience.  He has been a member of the Emergency Response Team (ERT) for a number of years.  The ERT engages in high stress situations that often involve violence or threats of violence.  Cst. Lofroth would have received the necessary training to deal with difficult and stressful police situations.  Notwithstanding the expert training, he was not able to restrain himself from assaulting the victim.

[42]        Cst. Lofroth was in a position of authority and abused his position of trust and authority in relation to the victim.

[43]        In R. v. Sweet, 2007 BCPC 240 Judge Weitzel states at paragraph 32:

[44]        Cst. Lofroth was previously granted a conditional discharge by this Court on April 12, 2001 by Judge Point in Prince Rupert.  Cst. Lofroth entered a guilty plea to assaulting a prisoner while on duty.  The court found that the assault was deliberate and intentional.  The prisoner was in cells when he was assaulted.  The assault of the prisoner resulted in loss of blood, stitches and medical attention. 

[45]        Judge Point granted Cst. Lofroth a conditional discharge and two years’ probation with conditions that included two hundred hours of community work service and a letter of apology to the victim.  Judge Point concluded the sentence proceedings with these words:

[46]        Counsel have provided me with a number of case authorities.  They are as follows:

[47]        I have also reviewed the decisions of R. v. Mantler, 2013 BCPC 98 (CanLII), R. v. Conlon, 2011 BCPC, 59 (CanLII) and R. v. Lepine, 2010 ABPC 374 (CANLII).

[48]        In the Tait case, the accused RCMP officer was granted a suspended sentence and 18 months’ probation after pleading guilty to the offence of assault causing bodily harm.  He was a 10 year veteran of the RCMP.  The incident involved the accused punching the victim in the face after the victim had spit in the face of the accused.  The victim was in handcuffs and was injured as a result of the assault.  The accused completed an anger management program and was the subject of internal RCMP discipline action.

[49]        In the Bal decision, the court was dealing with an RCMP officer who had no criminal record.  During the arrest of the victim, who was lying on the ground, the accused punched the victim in his head and rubbed his face into the pavement.  There was no rationale for the actions of the accused and the court found that the conduct of the officer was “incomprehensible and gratuitous violence” administered by the officer.  The accused took counselling and the court also found that this was the first incident of this kind in the career of the accused.  The court rejected a request for a discharge and sentenced the officer to a suspended sentence and 6 months’ probation.

[50]        In the Crocker case, the court was dealing with a correctional officer who assaulted an inmate.  The inmate spat on the officer a couple of times and the accused officer responded by striking the victim twice in the face, once with a closed fist and the other with an open hand.  The blows caused the victim’s nose to bleed.  The accused did not show any remorse and did not accept responsibility for his actions.  The court sentenced the officer to a suspended sentence and a term of probation for one year.

[51]        In the recent decision of Shipley and Wong, both accused were granted a conditional discharge by the court.  The accused were employed as police officers with the B.C. Transportation Authority.  During a brief investigation, both accused assaulted the victim.  The assault was described by the court as being on the lower end of the scale.  Both accused were highly regarded, had no prior records, were remorseful and had been reassigned to other duties.  The court concluded that granting a conditional discharge was in the best interests of each accused and not contrary to the public interest.

[52]        I have read and carefully considered the cases that have been provided to me.  Sentencing precedents are helpful but they are merely a guide.  Each case depends on the particular and unique circumstances of the offence and the offender.

[53]        As Cst. Lofroth is seeking a conditional discharge as a sentence in this case, it is necessary for this Court to outline the legal framework of the discharge provisions in the Criminal Code.

[54]        Section 730. (1) of the Criminal Code states the following:

[55]        A discharge is available in this case as the offence has no minimum sentence and maximum sentence is five years.  There are two broad considerations to the granting of a discharge.  First, it must be in the offender’s best interests; and second, it must not be contrary to the public interest, according to the decision of the British Columbia Court of Appeal in the decision of R. v. Fallofield, 1973 CanLII 1412 (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.).

[56]        Generally, the first condition would presuppose that Cst. Lofroth is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.  R. v. Fallofield.

[57]        In the context of the second consideration, the condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions.  R. v. Fallofield.

[58]        I turn first to the question of whether a discharge would be in Cst. Lofroth’s best interests.  After a careful review and after considering all the circumstances, it is my view that a discharge would not be in the best interests of Cst. Lofroth.

[59]        In particular I would note the previous conditional discharge that was granted by this Court.  A previous discharge is not a bar to another discharge.  However, good character generally presupposes that the offender has not been previously found guilty of a criminal offence.  Courts rarely grant a discharge if a discharge has previously been given.  See R. v. Tan (1974), 1974 CanLII 1608 (BC CA), 22 CCC (2^nd) 184 (B.C.C.A.); see also R. v. Sangha, 2006 BCPC 59.

[60]        I am mindful of the passage of time since the previous discharge.  It must also be noted, however, that the two offences were similar in nature and both occurred while Cst. Lofroth was on duty as an RCMP officer.  Judge Point also found that at the time of the assault Cst. Lofroth was under emotional stress due to the death of his brother.  The Court found that the emotional stress was a mitigating factor, unlike the present case, where there is no suggestion Cst. Lofroth was dealing with any stress or emotional issues in his life.  Therefore, I conclude that the principle of specific deterrence would not be satisfied by a discharge in this case.

[61]        Furthermore, there is no material before me that would suggest that Cst. Lofroth will be in jeopardy of losing his employment with the RCMP if he receives a criminal conviction in this case.

[62]        I turn next to the issue of whether a conditional discharge would not be contrary to the public interest.  I have concluded that to grant Cst. Lofroth a discharge in these circumstances would be manifestly contrary to the public interest.  In my view, the principles of general deterrence, denunciation and respect for the law would not be satisfied by the granting of a discharge.  The principles of sentencing in this case require that a criminal record be imposed.  When a peace officer commits a breach of trust while on duty any sentence imposed must emphasize deterrence and denunciation in order to preserve the public faith in the integrity of the justice system.

[63]        In arriving at this conclusion, I have balanced the mitigating and aggravating factors in this case.  As this court has pointed out, Cst. Lofroth occupied a position of trust; the young victim was not a danger to him or others and was subdued by handcuffs.  The facts in this case are serious.  The video is graphic and clearly depicts a blow to the head that was deliberate.

[64]        I have considered the level of provocation by S but have concluded it does not tip the scales in favour of granting discharge on a consideration of the public interest.

[65]        The public interest in general should also take into account the specific interests of First Nations youth.  They are part of the community that must and should be included in any reference to the “public interest”.  It is also important and vital for these youth to understand that if they are arrested and detained they will not be abused by persons in authority and subjected to harm.  In saying this, I am in no way condoning the actions of S during the arrest process.

[66]        I agree with the position of the Crown and find that a fit and proper sentence having regard to the circumstances of the offender and facts of the offence is a suspended sentence.

[67]        Probation is required, in my view, to address the principles of deterrence, denunciation and rehabilitation.

[68]        The Crown is not seeking a DNA order. 

[69]        The Crown is also not seeking a firearms prohibition under section 110 of the Criminal Code.

[70]        I have concluded that it is not appropriate to make a DNA order in this case.  I am also in agreement that a firearms prohibition is not appropriate in this case.

[71]        Accordingly, there will be a suspended sentence with a probation order of 12 months.  The following conditions will apply to the probation order:

[72]        You must also pay a victim fine surcharge of $200.00.