IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Dario Devic has pled guilty to breach of the trust placed in him as a police officer by engaging in sexual conversation through email with a person who represented herself to be under the age of 16.  The offence is contrary to s.122 of the Criminal Code.  He is now before me for sentencing.

[2]           In April 2007, Mr. Devic was hired as a police officer by the RCMP.

[3]           A little over 9 years later, on August 26, 2016, a woman named Danielle Van Vliet placed an advertisement on Craigslist in the “personals” section using a pseudonym.  Her advertisement said she was “looking to meet someone cool to hang out in the sun with”.  She listed her age as 18.

[4]           In fact, Ms. Van Vliet was a 30-year-old member of a quasi-vigilante group, calling itself “Surrey Creep Catchers”.  According to their website they “… identify online predators to the community”.

[5]           Mr. Devic, also using a pseudonym, responded to the advertisement three days later.  From August 29 to September 7, 2016, approximately 200 emails, some with photographs attached, were exchanged between them.  Mr. Devic made repeated references to being a police officer and sent a photograph of himself in uniform to facilitate the email discussions, some of which were sexual in nature.

[6]           Mr. Devic and Ms. Van Vliet agreed to meet on the evening of September 7, 2016.  At the meeting, Mr. Devic was confronted by other members of the Surrey Creep Catchers and fled.  The meeting and confrontation was video recorded by a Creep Catchers member and “live streamed” on Facebook.  The Creep Catchers also posted on Facebook a call for people to come and “take shots” at Mr. Devic.

[7]           The Surrey RCMP were alerted to the Creep Catchers Facebook post by an anonymous citizen.  Mr. Devic was eventually located by the police who took him home.  He was subsequently arrested and criminally charged for his conduct.

[8]           Crown counsel submits that a twelve-month jail sentence to be served in the community, pursuant to a Conditional Sentence Order, is appropriate.  The Crown bases its position on the seriousness of the abuse of Mr. Devic’s position and authority as a police officer, given his status as police officer played a prominent role in the email communications.

[9]           The Defence submits that a Conditional Discharge is the appropriate sentence.  Their position is based on: (i) Mr. Devic’s exemplary background; (ii) the collateral consequences he has already suffered from his offending; and (iii), the rehabilitative steps he has taken.  Finally, it is submitted that the sentence must indirectly discourage groups like the Creep Catchers from engaging in their own brand of law enforcement.

[10]        Mr. Devic is 34 years old.  He is married with children.

[11]        He has no criminal record.

[12]        He is from Bosnia and Herzegovenia.  His family escaped the area during the civil war and lived in refugee camps in Germany.  At age 13, he and his immediate family immigrated to Canada.

[13]        Mr. Devic learned English, graduated from high school, and attended a community college where he received a Diploma in Criminology.  He paid his own way through school.

[14]        He aspired to become a Royal Canadian Mounted Police officer since arriving in Canada.  As a youth he conducted himself so as not to compromise his chances of being hired by the RCMP.  His dream came true when he was hired in 2007.

[15]        Mr. Devic had an unblemished record with the RCMP prior to the offence.  He became a dedicated, respected, and capable police officer.  He received four commendations for exemplary performance and chose to maintain the rank of Constable despite having promotional opportunities.

[16]        On September 9, 2016, he was suspended from the RCMP because of this incident.  On April 20, 2018, he was medically discharged.  According to Mr. Devic and those close to him, his pride in and respect for his position as an RCMP officer never waned from his hire in 2007 to the end.

[17]        Mr. Devic has attended approximately 37 one-hour counselling sessions with Dr. Lingley, a registered psychologist, starting just days after the offence.  They have worked on addressing the psychological factors underlying the offence.  Dr. Lingley has previous experience working with adult sexual offenders.  In his opinion, Mr. Devic does not present a risk to the public to reoffend.  Part of the reason is the heavy price Mr. Devic has already paid personally, professionally, and financially for his offending.

[18]        Mr. Devic’s marriage was strained leading up to the offence.  Since the offence, he and his wife together have attended numerous sessions with Dr. Lingley.  Mr. Devic has the unconditional support of Ms. Devic.

[19]        Letters from family and friends were submitted attesting to Mr. Devic’s character.  Common themes emerge from the letters.

[20]        Mr. Devic is described as determined, hardworking, honest, responsible, family and public service oriented.  In the aftermath of the offence, he has owned up to his conduct to his supporters.  They all comment on how much he has lost, how he has learned any lessons to be learned from the situation, and how hard he is trying to make amends.  His remorse, shame, and the depths of his suffering have been unanimously mentioned as well.  He has been described as a “broken man”.

[21]        Mr. Devic has already suffered significant consequences for his actions.  His dream career in policing is over.  He was suspended without pay immediately after his arrest causing economic hardship to his family.  He remains unemployed, despite efforts to find work.  He has been ostracized by work colleagues, friends, and neighbours.  The Ministry of Children and Families initiated an investigation on the safety of his children.

[22]        Perhaps the biggest consequence has been his public shaming and humiliation.  Video and photographs of Mr. Devic were broadcast in the news and on social media.  The charges against him have received a high profile and garnered much public interest.  His reputation has been ruined, his dignity stripped, he has been publicly vilified, and he carries the stigma of a criminal offender.  There has been no anonymity for Mr. Devic, nor will there be given Mr. Devic’s notoriety is preserved on the internet.

[23]        In addition to the public condemnation, Mr. Devic has struggled mentally and emotionally with self-condemnation and self-forgiveness.  He feels profoundly remorseful and has deep regret for his offence and all that has flowed from it including the collateral damage to his wife and children.

[24]        As mentioned, Mr. Devic was proud to be a police officer and respects the work the police do and the people who do it.  He also feels profoundly remorseful for tarnishing the reputation of the RCMP and police officers generally.

[25]        At this juncture, I wish to make some comments about the complexity of the exercise the court must perform in sentencing an offender such as Mr. Devic for breach of trust.

[26]        The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions.  This purpose is achieved by a court considering the purposes, objectives and principles of sentencing in ss. 718-718.2 of the Criminal Code in the context of an offender’s personal circumstances, and the circumstances of the offence.  In this process, an assessment of the accused’s moral blameworthiness for the commission of the offence and a blending of the various objectives of sentencing to suit the individual’s case takes place.  The process is individual to each case and each offender.

[27]        The objectives and principles of sentencing take into account the needs of the community and the offender.  In the end, the sentence must balance these needs giving weight to some more than others depending on all the circumstances of the case.

[28]        Despite these various considerations and the balancing of objectives the analytical process actually has a narrow focus.  In the end, the court is to arrive at a sentence that is proportionate to the gravity of the offence and the offender’s degree of responsibility.

[29]        Previously decided cases make clear that for a breach of trust offence committed by a police officer, denunciation and general deterrence require emphasis, for example: R. v. Cook, 2010 ONSC 5016; R. v. Greenhalgh, 2011 BCSC 511, at para. 52.

[30]        The objective of denunciation is to communicate through the sentence society’s condemnation of an offender’s conduct (R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500).  General deterrence is achieved by communicating through the sentence that those who would break the law must know, and law-abiding citizens must be assured, that law-breakers will receive sentences that reflect the seriousness of their crimes (R. v. Johnson (1996), 1996 CanLII 3148 (BC CA), 112 C.C.C. (3d) 225 (B.C.C.A.)).

[31]        The Crown and defence agree that general deterrence and denunciation are to be emphasized in Mr. Devic’s sentence.  However, defence counsel submits that these objectives have already largely been achieved in the unique circumstances of Mr. Devic’s case, and can be further achieved through a Conditional Discharge or other non-custodial sentence.

[32]        Consideration must be given to all of the objectives and principles of sentencing including the principle of restraint contained in s. 718.2 (e) and (f).  Furthermore, punishment may be inflicted, and general deterrence and denunciation achieved in ways other than conventional imprisonment: R. v. Voong, 2015 BCCA 285, at para. 43.

[33]        Given Mr. Devic’s background, the collateral consequences he has already suffered, and his post-offence rehabilitative efforts, a sentence addressing specific deterrence and his rehabilitation is not necessary.  Nor does he present a risk to the public that requires his separation from society.

[34]        An important aspect of the defence position on sentencing, one that makes Mr. Devic’s case exceptional they say, are the collateral consequences he has already suffered.

[35]        Collateral consequences have a place in the sentencing analysis.  They are not necessarily aggravating or mitigating factors under s. 718.2 (a) of the Code but they are part of the personal circumstances of Mr. Devic.  They may also be relevant to the sentencing objectives of general and specific deterrence, and denunciation: R. v. Suter, 2018 SCC 34, at para. 48.

[36]        There is a limit, however, on the influence collateral consequences play in formulating a proportionate sentence.  Where the consequence is an obvious one that inevitably flows directly from the commission of the offence, conviction, or sentence, then its mitigating effect is reduced: Suter, at para. 49.  Furthermore, the collateral consequences suffered by an offender cannot eclipse the need for a sentence that emphasizes general deterrence and denunciation: R v. Cook, 2010 ONSC 5016; R. v. Greenhalgh, 2011 BCSC 511, at para. 52.

[37]        As mentioned earlier, Mr. Devic’s offence has received wide public attention in various forms of media.  He has been stigmatized for his offence and that stigma will endure.  As Mr. Devic is experiencing, the stigma an offender suffers from a charge, conviction or sentence, is a punishment unto itself.  It is an important way offenders are held accountable for their actions.  This was recognized in R. v. D.E.S.M., 1992 CanLII 6009 (BC CA), [1993] B.C.J. No. 702 (B.C.C.A.), where McEachern J.A. stated (at para. 20):

[38]        Defence counsel suggests the role and methods of the Surrey Creep Catchers should be considered an exceptional circumstance that ought to reduce Mr. Devic’s sentence.  I do not agree.

[39]        Mr. Devic is being sentenced for his offending behaviour.  His sentence involves a consideration and balancing of all the factors discussed above.  A proportionate sentence reflecting the gravity of the offence and his moral blameworthiness is the objective.  It is not a platform to condemn the actions of third parties through a substantive change to the sentence of the offender.

[40]        That said, in no way should these reasons be seen to endorse or condone the methods and actions of the Surrey Creep Catchers.  Self-deputized vigilante groups are dangerous to citizens and interfere with the administration of justice, and the work of law enforcement agencies.

[41]        Breach of trust (s. 122 of the Criminal Code) has a maximum sentence of 5 years jail.

[42]        The range of sentence for the offence, however, is broad.  The different types of trust positions an offender can hold and the different forms of offending are variables that make the range broad.

[43]        The aggravating and mitigating circumstances of the offence and offender, serve to calibrate the proportionality of a sentence.  I will summarize them now as they apply to Mr. Devic and the offence.

[44]        On behalf of Mr. Devic, it is submitted that the involvement of the Creep Catchers, the collateral consequences he has already suffered, and his presenting no future risk to reoffend, make this an exceptional case that merits a sentence at the low end of the range of appropriate sentences.  It is submitted the low end is a Conditional Discharge.

[45]        I have no doubt that a Conditional Discharge is in Mr. Devic’s interest.  But I believe a Conditional Discharge would be contrary to the public interest.

[46]        As a police officer, Mr. Devic was entrusted by the public with powers and influence not afforded ordinary citizens.  That trust and the privilege that goes with it created public expectations and a duty for Mr. Devic to conduct himself to a high standard of responsibility and conduct for the public good.  This relationship of trust and responsibility between the public and police is essential to maintaining public confidence in those who exercise law enforcement powers.  Mr. Devic abused that trust by using his status as a police officer for a purpose other than the public good.

[47]        Mr. Devic’s offending was more of a direct hit to the public interest than other cases.  A Conditional Discharge under these circumstances would diminish the public’s confidence that those who break its trust for their own purposes will be held accountable in a way that reflects the importance of the trust/responsibility relationship.  Such a loss of confidence would hinder the rehabilitation required to re-establish that trust.

[48]        There is no question Mr. Devic has suffered immensely and already paid a heavy price for his offending.

[49]        Mr. Devic’s baseline character suggests the offence was an aberration when he lost his way.  That character, his rehabilitative efforts, and all that he has lost, supports the conclusion that there is little risk of him re-offending.

[50]        Emphasizing the sentencing objectives of general deterrence and denunciation, however, requires sending a clear message that those who are entrusted with law enforcement authority and responsibility will receive significant sentences for breaching that trust.

[51]        A proportionate sentence for Mr. Devic, based on an objective, reasoned, and measured balancing of all of the sentencing considerations is a 4-month jail sentence to be served in the community under a Conditional Sentence Order, followed by 12 months probation.

[52]        The conditions of the Conditional Sentence Order are:

[53]        The conditions of the Probation Order are:

[54]        Breach of trust is a secondary designated offence making it discretionary whether Mr. Devic should provide a sample of his DNA for the DNA data bank.

[55]        Crown Counsel and defence disagree on whether a sample should be provided.

[56]        Whether a sample ought to be provided is determined on a case-by-case basis.  It involves a balancing of interests in considering the relevant factors to determine whether the “best interests of the administration of justice” require making the order or not.  The relevant factors include the person’s criminal record, the nature of the offence, the circumstances surrounding its commission, and the impact of an order on the person’s privacy and security.

[57]        Mr. Devic has no criminal record and an unblemished past.  His offence is breaching the public’s trust in responsibly conducting himself as a police officer by engaging in an online sexual dialogue with someone who represented herself to be under 16.  There is little chance of him reoffending.  His personal privacy and security have already been severely compromised from the public profile of his offence.  Any further intrusion on his privacy has a compounding effect in its impact on him.

[58]        Balancing the relevant interests, I conclude the best interests of the administration of justice do not require that Mr. Devic provide a sample of his DNA.

[59]        The Victim Fine Surcharge applies.  Mr. Devic will have two months from the date of sentencing to pay.