IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Count 1 of Information 99557-1 alleges that on January 6, 2018, at or near Coquitlam, British Columbia, Deepak Kumar Sood (“Mr. Sood”) uttered threats to cause death or bodily harm to Gert Knudsen (“Mr. Knudsen”), contrary to s. 264.1(1)(a) of the Criminal Code. The Crown proceeded summarily against Mr. Sood on that charge and on March 20, 2019, following a trial conducted on January 30-31, 2019, he was convicted. Accordingly, Mr. Sood is now before the court for sentencing.

[2]           The offence of uttering threats to cause death or bodily harm is a hybrid one and it carries a maximum sentence upon summary conviction of 18 months imprisonment. There is no minimum.

[3]           The Crown submits that the court in this case should suspend the passing of sentence upon Mr. Sood pursuant to s. 731(1)(a) of the Criminal Code and place him on probation for between six and 12 months, with conditions that include counselling for anger management and community work service. Through his counsel, Mr. Sood takes the contrary position that he should be conditionally discharged pursuant to s. 730 on essentially the same terms.

[4]           Even if Mr. Sood were to comply fully with all of his probationary conditions, a suspended sentence would leave him with a criminal record. By contrast, full compliance with probationary conditions imposed pursuant to a conditional discharge would result in Mr. Sood’s discharge being perfected, leaving him without a criminal record. It is mainly that important difference between the long-term consequences of conviction that animates the contrasting arguments advanced by counsel as to what would, in all the circumstances, constitute a just and fit sentence for Mr. Sood.

[5]           Certain threshold requirements must be met before either a suspended sentence or a conditional discharge may be considered as sentencing options for any offender. For example, a suspended sentence is only available for sanctioning those who have committed offences for which the Criminal Code does not impose a statutory minimum sentence. Similarly, a conditional discharge is only available where the offender is not an organisation, and the offence he or she committed does not carry either a statutory minimum sentence or a maximum sentence of 14 years or life.

[6]           Crown and defence counsel agree that, having regard to those threshold requirements, both a suspended sentence and a conditional discharge are sanctions that could be imposed upon Mr. Sood for uttering threats to cause death or bodily harm to Mr. Knudsen. However, counsel disagree sharply with respect to other requirements prescribed by the Criminal Code in this regard. As will be seen in these Reasons for Sentence, their disagreement centres mainly upon the language in s. 730(1) that limits the imposition of a conditional discharge to circumstances where it would “not [be] contrary to the public interest” to do so.

[7]           The circumstances surrounding the commission, by Mr. Sood, of the offence of uttering threats to cause death or bodily harm to Mr. Knudsen are fully set out in my Reasons for Judgment on conviction (the “Reasons on Conviction”), indexed at 2019 BCPC 44, [2019] B.C.J. No. 440 (Prov. Ct.). Consequently, only a brief summary need be given here.

[8]           Mr. Sood is a constable with the Vancouver Police Department. The events giving rise to the charge of which he was ultimately convicted occurred when he was off duty.

[9]           In November of 2017, Mr. Sood purchased a number of items of furniture from a furniture retailer (“M&M”) of which Mr. Knudsen is the principal. One of those items was a dresser (the “Dresser”) for his, then, four-year-old son. Due to a misunderstanding between Mr. Sood and M&M as to whose responsibility it was to anchor the Dresser to an adjacent wall to stabilise it and safeguard it against tipping, no anchoring mechanism was installed at the time of delivery. Some weeks later, on Saturday, January 6, 2018, with all six of its drawers having been pulled open, the Dresser tipped forward at a 45 degree angle. One of the drawers came to rest on Mr. Sood’s four-year-old son’s foot, in effect pinning him in place and causing him great upset (though no serious harm).

[10]        After righting the Dresser and freeing his son’s foot from under the drawer that had come to rest upon it, Mr. Sood came to the conclusion that it was essential that M&M retrieve the Dresser from his home straightaway. He then commenced making telephone calls to M&M, insisting that it send one of its delivery trucks to his home that day (a Saturday) to take the Dresser back to the store. Inquiries conducted by M&M representatives determined that the first day that the return could be done was the following Monday. When that proposed resolution to his complaint was explained to Mr. Sood, he considered it to be entirely unsatisfactory. Over the course, then, of what Mr. Sood himself admitted could have been as many as 25 calls, he pressed M&M representatives relentlessly and more and more forcefully for same-day pick-up of the Dresser. He did so despite having been told that M&M’s delivery trucks were fully subscribed and that the earliest the pick-up could occur was the following Monday. As his frustration at not getting the result he was demanding grew, his language with M&M representatives “degenerated into a loud and angry fusillade of profanities and intensifying demands” (see Reasons on Conviction, para. 23).

[11]        Among other things, over the course of a tirade that went on for a period of hours, Mr. Sood threatened to bring the Dresser back down to the M&M store and throw it through its front window. More importantly, Mr. Sood also threatened to “bash [Mr. Knudsen’s] fucking head in.” When Mr. Knudsen cautioned him that he would have to call the police if such threats were to continue, Mr. Sood replied by identifying himself as a policeman, stating “Don’t bother, I am the fucking police.”

[12]        Again, a much more detailed outline of the circumstances of the subject offence is provided in paras. 36-89 of the Reasons on Conviction, which paragraphs I incorporate by reference into these Reasons for Sentence.

[13]        Mr. Knudsen prepared a Victim Impact Statement that was filed as Exhibit 1 on Mr. Sood’s sentencing. In it, he refers to both the immediate and the persisting effects of having been threatened with death or bodily harm by Mr. Sood. He makes reference to the genuine fear he had for himself and his staff, given that Mr. Sood’s threats “seemed credible and very real.”

[14]        The situation that unfolded on January 6, 2018, was a truly unique one in Mr. Knudsen’s experience. He explains that, having functioned for over 40 years in the retail business, he has (of course) had to deal with his share of rude and belligerent customers. However:

[15]        Mr. Knudsen is also troubled by the fact that media exposure given to the incident with Mr. Sood might cause some members of the public to think that M&M in some way bears negative attitudes toward the police. Further, he explained in his Victim Impact Statement that he has been left by the incident with lingering concerns that having become involved in an adversarial encounter with a police officer might give rise to unwarranted trouble for him and his business in their future dealings with law enforcement:

[16]        Mr. Sood is, as has been noted, a constable in the employ of the Vancouver Police Department. He is married with two young children and will soon turn 36. During his childhood he periodically moved back and forth between Canada and India and, consequently, he is a fluent speaker of English, Hindi and Punjabi.

[17]        As to education, following his graduation from high school Mr. Sood attended Kwantlen College for two years and then continued on to Simon Fraser University where he earned an undergraduate degree in criminology. After that he took police training and joined the Vancouver Police Department in 2009 at the age of 25.

[18]        Mr. Sood comes before the court with no criminal record.

[19]        Mr. Sood also has an unblemished workplace record as a member of the Vancouver Police Department. He has been given increasingly responsible positions and assignments there, some involving secondments to the RCMP. Since 2018 he has been part of the Beat Enforcement Team in the Downtown Eastside where, as is generally known, the challenges are extraordinary and call for a particularly sensitive and empathetic kind of police work. To all accounts, Mr. Sood has performed that difficult work in an exemplary way.

[20]        Mr. Sood has shown over the years a willingness to become actively involved in a voluntary capacity with his broader community. His contributions in that regard, and the general esteem in which he is held by friends, family and colleagues, have been acknowledged in the character reference letters that were placed before the court and marked as Exhibit 2 at his sentencing.

[21]        Mr. Sood’s parents are still alive and he has five siblings. Several of his family members, extended family members and friends—some with their spouses—attended at his sentencing hearing to show their support for him at a difficult time. Some of those who could not do so filed letters.

[22]        Mr. Sood comes before the court with no previous criminal history, and no criminal record. This is a factor to his credit that operates in mitigation of sentence and I treat it as such.

[23]        As I have noted above, Exhibit 2 on this sentencing consists of numerous letters written by Mr. Sood’s friends, family and colleagues, attesting to his good character. In another case that evidence might well have had a more powerful mitigating effect. However, because Mr. Sood is a police officer, its mitigating force is reduced. As Fratkin P.C.J. stated in R. v. Bal, [2013] B.C.J. No. 237 (Prov. Ct.):

[24]        I understand that Mr. Sood has cooperated with authorities in the wake of the charge having been brought against him in connection with his threat to cause death or bodily harm to Mr. Knudsen. I have not, for example, been informed of any breaches of any conditions that have bound him since charges were approved. That pattern of lawful cooperation throughout the period leading up to sentencing operates in mitigation of sentence.

[25]        Where an offender takes proactive steps, prior to sentence, to address underlying criminogenic problems and thereby limit the likelihood of future offending, the taking of those steps is considered mitigating at law. This factor is related to the issue of the offender’s insight into the causes of his or her own offending and into the steps he or she might take to make it less likely that that offending will be repeated.

[26]        On the submissions of his counsel, Mr. Sood has been introspecting deeply since January 6, 2018, and taking careful stock of his conduct on that day. I also understand that he has done at least some investigation into resources that might assist him in maintaining better control of his temper at times of stress and upset. However, as his counsel explained, he has yet to take any concrete steps in that direction; rather, as I understand it, he is waiting to see what is made available to him pursuant to a counselling provision in the probation order that will eventually be made against him. Mr. Sood expresses an intention to take the full benefit of that counselling in his efforts then to move on past the unhappy events of January 6, 2018, once the sentencing process has run its course.

[27]        Certainly, as can be seen, Mr. Sood has conveyed to the court that he has some measure of insight regarding his own offending. As such he is entitled to have that recognised under the rubric of mitigation. However, I consider that the mitigating force of that insight is attenuated by the fact that he yet to take any concrete steps to, for example, begin sessions with a counsellor or psychologist to help him:

[28]        Recall that, at trial—while still maintaining that he did not utter any threats to anyone—Mr. Sood nevertheless used very unflattering words to describe his own conduct toward Mr. Knudsen and various other M&M representatives. As I noted at para. 5 of the Reasons on Conviction:

[29]        And, similarly, quoting from para. 73:

[30]        So, yes—insight is discernible in the evidence on sentencing in this case and Mr. Sood is entitled to have me recognise it as mitigating. But its mitigating force is limited for the reasons I have given.

[31]        Expressions of remorse, if they are made sincerely, will generally be treated as being of mitigating significance at the time of sentencing. I do acknowledge the expressions of remorse that Mr. Sood made through counsel and in his own voice about the effects of his actions on Mr. Knudsen and others at M&M. They impressed me as being genuine. However, the mitigating force of such expressions is either non-existent or greatly lessened in cases involving offenders who are police officers: see R. v. Robinson, 2012 BCSC 1184 at para. 23.

[32]        Mr. Sood has already experienced public opprobrium as a result of the media attention that has been given to his conviction for uttering threats to cause death or bodily harm to Mr. Knudsen. It is reasonable to anticipate that more such negative media attention will follow upon the imposition of his sentence.

[33]        Adverse media attention is sometimes cited as an extrajudicial consequence for criminal misconduct that can be seen to intersect with, and bear to some degree upon, what is intended by sentencing objectives such as denunciation and specific deterrence: see, for example, R. v. Bunn, 2000 SCC 9. However, upon the binding authority of R. v. Ralph, [2014] B.C.J. No. 485 at paras. 48-51 (S.C.), the public opprobrium that can result from the adverse publicity an offender may experience in the wake of a criminal conviction does not operate in mitigation of sentence in British Columbia.

[34]        Quite apart from facing criminal sentencing as a result of his conviction, Mr. Sood also faces potential disciplinary sanctions under the Police Act and its associated Regulations. Whether such sanctions will indeed be imposed, and if so what they will be, cannot (of course) yet be known. I must not, therefore, indulge in speculation about such sanctions in my sentencing calculus for Mr. Sood. However, even if I could permissibly speculate in that regard, there is authority for the proposition that external sanctions should, in the circumstances of individual cases, operate little, if at all, in mitigation of sentence: see, for example, R. v. Lepine, 2010 ABPC 374 (CanLII), [2010] A.J. No. 1344 at paras. 25-28 (Prov. Ct.) and R. v. D.W., [2014] B.C.J. No. 822 at paras. 34-36 (Prov. Ct.).

[35]        Finally under this heading, I pause to note that much was made in the course of defence submissions of the fact that on the offence date Mr. Sood was very emotional, owing to his upset at the frightened response of his frightened child caused by the tipping of the Dresser. While I do not doubt that that situation did indeed cause him emotional upset, it is not open to Mr. Sood to contend that he acted reflexively, or impulsively or in the “heat of the moment” in response to an upsetting incident involving his son, and that that should therefore operate in his favour as a factor in mitigation of sentence.

[36]        That argument is simply unavailable to Mr. Sood on the facts of the case at bar. The threat he made to “bash [Mr. Knudsen’s] fucking head in” came in the course of a prolonged and relentless campaign of intimidation that covered a period of hours—a campaign that Mr. Sood himself agreed consisted of up to 25 telephone calls during which, quite apart from using specific, threatening words, he behaved “like an asshole” (his words) toward M&M representatives and engaged generally in behaviour that even he admitted was threatening. The threat Mr. Sood made to Mr. Knudsen cannot be divorced from that context.

[37]        Section 718.2(a)(iii) of the Criminal Code provides that where an offender, in committing an offence, abuses a position of trust or authority in relation to a victim, that abuse of trust or authority stands in aggravation of sentence. The trust and authority relationship that exists between police officers and the public they serve is a relationship that fits squarely within the ambit of s. 718.2(a)(iii): see, for example, Robinson at para. 22 and R. v. Devic, [2018] B.C.J. No. 3434 at paras. 43 and 46-47 (Prov. Ct.). Recall that when Mr. Knudsen cautioned Mr. Sood on January 6, 2018, that if his threatening behaviours continued he would have to report the matter to the police, Mr. Sood responded “Don’t bother, I am the fucking police.” That, clearly, was an act of intimidation and a misuse by Mr. Sood of his status and authority as a police officer to serve a private end. He wanted M&M to bend to his will and retrieve the Dresser from his home that day and he did not hesitate to invoke his status and authority to improve the chances that M&M would do so. No other—and, perforce, no legitimate—purpose for Mr. Sood’s reference to himself as a police officer can be recognised in any of the evidence adduced at trial. I shall have more to add on this subject below when discussing the question of whether it would be contrary to the public interest for the court to discharge Mr. Sood. Suffice it to say, for now, that I am satisfied that s. 718.2(a)(iii), as a statutory factor in aggravation of sentence, is fully engaged by Mr. Sood’s conduct on January 6, 2018.

[38]        At common law, it is recognised that where an offence involves planning and pre-meditation, that fact can be aggravating for the purpose of sentencing. On the facts as found in the Reasons on Conviction, Mr. Sood conducted a very deliberate campaign over an extended period to extract the concession he was seeking from M&M—namely, that the company dispatch a delivery truck to his home straightaway, pick up the Dresser and take it back to the store.[1] He was darkly purposeful in his efforts. He called repeatedly, telling M&M representatives that they might just as well close up the store for the day because he was going to keep on calling until he got his way. He “upped the ante” as it were by including threats that if M&M did not yield to his wishes he would come down to the store himself and:

[39]        There were many opportunities over this extended transaction for Mr. Sood to stand back, catch his breath, calm himself and change course. But he did not do so. Rather, he continued and indeed escalated his single-minded and destructive pattern of intimidation in a determined and resolute effort to realise his objective. In a word:

[40]        In my view, the planning and premeditation that is writ large on the face of that calculated and lengthy course of deplorable conduct on Mr. Sood’s part can justly be treated, for sentencing purposes, as an aggravating factor.

[41]        At common law, where an offender shows a callous disregard for the harm that is caused by his or her conduct to his or her victim, that disregard too will operate in aggravation of sentence. This factor is clearly engaged by the facts before the court in the case at bar. The evidence at trial revealed the extent to which Mr. Sood’s harsh campaign of intimidation culminating in a threat to cause death or bodily harm caused upset and fear for M&M’s representatives, including but not limited to Mr. Knudsen. That upset and fear comes through clearly in the Victim Impact Statement that was filed as Exhibit 1 at Mr. Sood’s sentencing hearing. It is plain that Mr. Sood was so single-mindedly bent on getting M&M to remove the Dresser from his house on the same day the tipping incident occurred that he was pitilessly indifferent to the effects his relentless campaign of telephone intimidation would cause for those at M&M who took his calls and, in particular, for Mr. Knudsen—the recipient of the s. 261(1)(a) threat. It follows that callous disregard for the victim of an offence as a common law aggravating factor for sentencing purposes is also fully in play in the case at bar.

[42]        In R. v. Pommer, 2008 BCSC 737, D. Smith J. (as she then was) provided a helpfully concise summary of the purposes, objectives and principles of sentencing as they are presented in ss. 718ff of the Criminal Code and the case law that has interpreted those sections. That summary, which I respectfully adopt, is found at paras. 42-43, and it reads as follows:

[43]        In sentencing Mr. Sood I must and shall be cognizant of and follow the general approach reflected in that quotation.

[44]        That said, a somewhat specialised body of case law has developed over the years to deal with situations where police officers come before the courts for sentencing after they have pleaded guilty to, or been convicted of, criminal offences committed while they were on duty or off duty. Therefore, I must, as well, be cognizant of and take guidance from that law here. (I take that guidance recognising, of course, that no two cases are wholly alike and that sentencing entails a highly individualised process. The objective of the exercise, in any given case, is to achieve the best match possible between the sanction imposed and the contours of the circumstances that are unique to that case.)

[45]        Certain overarching considerations emerge from the aforementioned, somewhat specialised body of case authority dealing with police offenders. They include the following:

[46]        As I have noted at the beginning of these Reasons for Sentence, while counsel are agreed (and I accept) that a probationary order must form part of the sanction imposed upon Mr. Sood as a result of his conviction for threatening to cause Mr. Knudsen death or bodily harm, they are sharply divided as to whether that probationary order should be associated with the suspension of the passing of sentence (as the Crown submits) or with a conditional discharge (as Mr. Sood submits). The difference carries great significance insofar as the former would leave Mr. Sood with a criminal record whereas the latter would not.[3]

[47]        Looking at the conditional discharge option, there is no true disagreement between counsel that, for the purposes of the first branch of the test under s. 730(1) of the Criminal Code, a discharge would “be in the best interests” of Mr. Sood. This is generally so in cases where specific deterrence is not a significant consideration: see R. v. Fallowfield, 1973 CanLII 1412 (BC CA), [1973] B.C.J. No. 559 at para. 21(5) (C.A.). Assuming that Mr. Sood will embrace and take the benefit of what will become available to him in terms of anger management counselling—a reasonable assumption in my view—the likelihood that he will commit further offences of a similar kind is low. Thus, the Crown does not place any emphasis on specific deterrence in its sentencing submissions regarding Mr. Sood and, indeed, acknowledges at para. 21 of its counsel’s written submission that “a discharge would be in the best interests of the [offender]” and that “specific deterrence has likely been attained”.

[48]        It is with respect to the second branch of the test—namely, the question of whether a discharge of Mr. Sood in the circumstances of this case would “not be contrary to the public interest”—that the disagreement between Crown and defence truly arises.

[49]        The Crown frames the question this way: “The court ought to enquire whether, and if so how, the grant of a discharge might be injurious to the public interest.” Counsel goes on to submit that to grant a discharge of Mr. Sood on the facts here would be contrary to the public interest for two main and interrelated reasons, namely:

[50]        These concerns are not merely theoretical in the present case. The passages quoted above from Mr. Knudsen’s Victim Impact Statement make plain that his experience with Mr. Sood have shaken his confidence in the police and left him with lingering worries about how being involved in the prosecution of Mr. Sood might redound to his detriment in any future dealings he may have with the police.

[51]        In R. v. Greenough, [2005] O.J. No. 2302 (C.J.), Keast J. suspended the passing of sentence for an off-duty police officer who assaulted a civilian. In doing so, the sentencing judge considered but declined to grant the offender a conditional discharge, citing the public interest branch of the test under s. 730(1) and concluding, inter alia, that the general deterrence objective would not be sufficiently served by a discharge. At para. 29, the following passage appears in the Greenough Reasons for Sentence:

[52]        It is reasonable to expect that the police community in British Columbia—an ascertainable group that it is appropriate for the court to have in mind for general deterrence purposes[4]—will, similarly, look carefully at Mr. Sood’s case and “what message can be drawn” from it.

[53]        Factors operating in aggravation of sentence featured prominently in the court’s reasoning when the passing of sentence was suspended and the conditional discharge option was rejected in Greenough. In this regard there are some important commonalities to be discerned between Greenough and the case at bar—commonalities that help to propel the court to the conclusion that, here as well, a conditional discharge would constitute an inadequate sanction, having regard to, inter alia, the issues of general deterrence and fostering public confidence in, and respect for, the police.

[54]        It will be recalled that, as I found in my Reasons on Conviction and as I have emphasised earlier in these Reasons for Sentence, in the course of his off-duty efforts to vindicate what he considered to be his private right—namely, to have the subject Dresser picked up from his home and returned to the store on the same day he informed M&M of his complaint about it—Mr. Sood expressly invoked his status as a police officer. That is, when Mr. Knudsen told him that if his relentless pattern of profane and threatening telephone calling did not cease M&M would have to call the police, Mr. Sood responded by saying “Don’t bother, I am the fucking police”.

[55]        Can there be any doubt in anyone’s mind that such a statement would raise the temperature in an already very troubled series of interactions and amplify the intimidating effect of Mr. Sood’s ruthless campaign against M&M and its representatives?

[56]        Recall that Mr. Sood also testified that he threatened to bring the Dresser back down to M&M and throw it through the store’s front window if M&M did not come to pick it up straightaway. Recall as well that, while being cross-examined at trial, Mr. Sood agreed with Crown counsel when she put it to him that “his behaviour was threatening, even if we disagree about your words”. It is little wonder that he made that concession.

[57]        From these things and others we know that quite apart from the specific threats Mr. Sood levelled at Mr. Knudsen to cause him death or bodily harm by bashing his head in, the situation as a whole was manifestly threatening and intimidating, as Mr. Sood himself admitted, and becoming increasingly so. By responding to Mr. Knudsen’s reference to M&M possibly turning to police for assistance with that situation by telling him “Don’t bother, I am the fucking police,” Mr. Sood not only discouraged recourse by Mr. Knudsen to law enforcement assistance at a time of need, he made himself an even more threatening and worrisome adversary—one who apparently would stop at nothing to get his way. And this, again, all unfolded in a misguided effort to secure a favourable result in a private consumer dispute that had nothing whatsoever to do with his powers, privileges, duties and responsibilities as a police officer.

[58]        As I have noted, there is an eerie parallel to be seen between Mr. Sood’s reference to his own status as a police officer while engaged in a pattern of escalating intimidation of M&M representatives and the similar, self-referential statement made by the off-duty Sudbury police officer who is the subject of the sentencing decision in Greenough. At para. 7 of that decision, Justice Keast makes the general observation—consistent with British Columbia sentencing authorities regarding off-duty officers—that “When a police officer is off duty, he is still a police officer.”[5] Then at paragraph 21 of Greenough, the sentencing judge discusses some of the factors he considered aggravating. The interaction between the off-duty officer and his victim, culminating in the subject assault in that case, is characterised in that paragraph (and in para. 7) as being marked by an “atmosphere of power, control and domination” attributable to the officer’s actions as contextualised by his position of authority.

[59]        Certainly, the atmosphere in the dealings between Mr. Sood and Mr. Knudsen can be described in the same way.

[60]        Paragraph 21 of Justice Keast’s Reasons for Sentence in Greenough concludes with these words:

[61]        As I have noted, Justice Keast went on, in Greenough, to suspend the passing of sentence for the officer who committed the off-duty assault, placing him on probation for 12 months.

[62]        In a rather different context—one in which a police officer engaged in sexually explicit e-mail conversations with a person who represented herself to be under the age of 16 and pleaded guilty to committing an offence under s. 122 of the Criminal Code—the offending constable made “repeated references to being a police officer”: R. v. Devic, [2018] B.C.J. No. 3434 at para. 5 (Prov. Ct.). The officer did so at times when he was on duty and at other times when he was off duty. This aspect figured prominently in the sentencing logic of Sutherland P.C.J. who, under the subheading, “Aggravating Circumstances,” noted the following points:

[63]        Addressing the issue of the effects of different kinds of sentencing options upon public confidence in the police, Judge Sutherland went on, at paras. 46 and 47 of Devic, to add to the last two bullet points above some more general statements about what is lost when a police officer uses his or her status for a purpose other than to serve the public good:

[64]        I made similar points in R. v. Tsui, [2008] B.C.J. No. 1096 (Prov. Ct.) at paras. 51-52 when I stated this:

[65]        To that last quoted paragraph I would add, for present purposes, that the issue of public confidence in the law and law enforcement personnel is relevant because it also ties directly into what Parliament had in mind when it restricted the use of the discharge sanction to cases where it is not contrary to the public interest to discharge an offender.

[66]        Like the officers in Devic and Greenough, Mr. Sood in my view invoked his status as a police officer for entirely improper and collateral purposes—in his case to vindicate what he believed was his private right in a consumer dispute. His self-referential statement invoking his power and authority was uttered with no hint of serving the public good. The injury to the public repute of law enforcement that this kind of conduct inevitably must cause calls out for a sanction that is commensurate with its broad, societal implications—a sanction that, beyond being pointedly denunciatory, also sends a message to the public that such abuses of trust and power are dealt with resolutely by courts when police officers who commit such offences are finally called to account. The approach taken to sentencing Mr. Devic provides helpful guidance to me in the case at bar when I consider the public interest branch of the test in s. 730(1) and the relevant issues of general deterrence and the potential undermining of the public’s trust and confidence in the police.

[67]        I have carefully considered the submissions made in favour of the use of the conditional discharge sanction by Mr. Sood’s counsel. However, for the reasons I have given above, I am simply unable to accept that in the unique circumstances of this case, a conditional discharge would adequately serve the statutory sentencing objectives of denunciation or general deterrence—matters that, as Dillon J. stated in Robinson, “overshadow all other principles when it comes to shaping a fit sentence for a police officer.” Moreover, a conditional discharge would in my view degrade public confidence in the law and in the law enforcement personnel who are called upon to uphold it.

[68]        The fact that a suspended sentence would leave Mr. Sood with a criminal record is a matter of grave concern to him for reasons that everyone can understand. But, there are times when having an offender’s transgression made formally a matter of public record can be justified. It can be justified here, in my view, in order to serve the objectives of enhancing general deterrence and of cultivating public confidence in the police, in the law, and in the processes by which law enforcement personnel are held to account when they transgress. Seen in this way, the fact that a suspended sentence carries with it a criminal record for the offender actually forms part of the rationale for choosing that sanction. As McGillivray J.A. stated (per curiam) in R. v. B.J.M., 1976 ALTASCAD 6 (CanLII), [1976] A.J. No. 429 (C.A.) at para. 20:

[69]        In my respectful opinion, that reasoning applies mutatis mutandis to Mr. Sood’s offending in the case at bar and the unique species of “breach of trust”—acknowledged in s. 718.2(a)(iii) of the Criminal Code—that it reflects on his part. Such offending by police officers can also be fairly said, for reasons akin to those given in B.J.M., to call for some formal notoriety where that formal notoriety itself serves a public interest. A criminal record for a deserving police offender furnishes that formal notoriety in a measured way.

[70]        I am thus persuaded by the arguments presented by the Crown that, on the second branch of the s. 730(1) test—the public interest branch—a conditional discharge is foreclosed as a sentencing option for Mr. Sood.

[71]        Mr. Sood’s counsel made well-conceived and articulate submissions, citing numerous authorities, all in an effort to convince the court to conditionally discharge him. In various ways, however, the authorities upon which counsel relied can be seen to be distinguishable. Many involved “heat of the moment” incidents. None involved threats to cause bodily harm or assaultive behaviours embedded in and contextualised by protracted displays of otherwise intimidating and threatening behaviour. Having made such points generally, I do not see that any useful purpose would be served by my going through those distinguishable authorities and pointing out the differences between them and the case at bar, one by one.

[72]        I will acknowledge that the facts of some of the cases the Crown has cited to the court and upon which I have placed reliance—like Robinson for example—involve more egregious facts than those revealed in the case at bar. However, the general principles that emerge from those cases are nevertheless sound and the applicability of those principles to Mr. Sood’s case is not unseated by the factual distinctions that his counsel has highlighted in her able submissions.

[73]        It is also true that in some of the cases cited to me by Mr. Sood’s counsel, police offenders have received conditional discharges in circumstances where they have inflicted actual physical harm upon their victims. Seen in that light, declining to follow the same path in a case, like the one at bar, where physical harm was only threatened but not actually inflicted, may at first blush provoke perplexity on the part of some.

[74]        However, a central feature in my reasoning above—that is, the express invocation by Mr. Sood of his status as a police officer while committing the offence for which he is answerable—serves to separate the case at bar from essentially all of the authorities upon which Mr. Sood’s counsel relies. Saying the words, “Don’t bother, I am the fucking police” at the time and in the circumstances he said them amounts to a profoundly aggravating factor for sentencing purposes, as I have been at pains to explain. Having said those words to Mr. Knudsen, Mr. Sood brought the full weight of his special powers and authority as a police officer into the equation, both on the offence date and now on his day of reckoning; he actively misused those powers and that authority, thereby compounding the jeopardy he faces as a police offender awaiting sentencing in a very significant way. Nothing comparable to that aspect of the case at bar can be seen in any of cases placed before me other than Greenough and Devic.[6]

[75]        Mr. Sood, would you please stand?

[76]        For all of the foregoing reasons, I decline to sanction you for uttering threats to cause death or bodily harm to Gert Knudsen by granting you a conditional discharge. Rather, I elect to suspend the passing of sentence upon you for a period of 12 months, commencing today, pursuant to s. 731(1)(a) of the Criminal Code.

[77]        I do so having given due regard to both the mitigating and aggravating circumstances that have been identified to me and to which I am permitted to give regard. I do so believing that to suspend the passing of sentence upon you will contribute to respect for the law and the maintenance of a just and peaceful society. I do so believing that that disposition is proportionate to the gravity of the offence you committed and that it properly reflects the considerable moral blameworthiness you bear for threatening to cause death or bodily harm to Mr. Knudsen in circumstances where you also invoked your powers and authority as a police officer for a collateral and improper purpose.

[78]        I have been persuaded that in order to properly give effect to the statutory objectives of sentencing set out in s. 718 of the Criminal Code—denunciation and general deterrence being objectives of surpassing importance in your case—I must suspend the passing of sentence and not discharge you. In coming to that decision I have taken helpful guidance from other cases in which that sanction has been imposed upon somewhat similar offenders who committed somewhat similar offences in somewhat similar circumstances.

[79]        During the 12-month period while the passing of sentence will stand suspended, you shall be subject to an order of probation. The terms of that order of probation are as follows:

[80]        Those are your probationary terms. Before attending for your first reporting event at the probation office you must first attend at the court registry to sign your probation order. Your signature on that document will signify that you both understand your terms of probation and that you solemnly promise to abide by them.

[81]        That concludes my Reasons for Sentence in this matter.