R. v. Read

2016 BCCA 111 R. v. Read

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Read, 2016 BCCA 111 Date: 20160311 Docket: CA42874 Between: Regina Respondent And Gary Kenneth Read Appellant Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Harris The Honourable Mr. Justice Fitch On appeal from: An order of the Provincial Court of British Columbia, dated June 18, 2015 (R. v. Read, Vancouver Docket 221281-1). Counsel for the Appellant: M. Richards Counsel for the Respondent: M. Ainslie, Q.C. D. Boblin Place and Date of Hearing: Vancouver, British Columbia February 16, 2016 Place and Date of Judgment: Vancouver, British Columbia March 11, 2016 Written Reasons by: The Honourable Mr. Justice Fitch Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Harris Summary: The appellant, an exhibit custodian working in an RCMP detachment, was convicted of stealing approximately 1 kg of cocaine from a secure drug locker. He was sentenced to 14 months' incarceration. He appeals the sentence imposed, alleging a variety of errors in principle on the part of the sentencing judge. He seeks the imposition of a conditional sentence of imprisonment on appeal. Held: The appeal is dismissed. Even assuming error in principle, the appellant failed to demonstrate that the error resulted in an unfit sentence. Offences of the kind committed by the appellant implicate public

confidence in the administration of justice. A conditional sentence of imprisonment would, in the circumstances of this case, be inconsistent with the predominant sentencing principles of general deterrence and denunciation. Reasons for Judgment of the Honourable Mr. Justice Fitch: A. Introduction [1] This is an appeal by Gary Kenneth Read from a sentence of 14 months' incarceration imposed on June 18, 2015 following his conviction for theft. Leave to appeal was granted when Mr. Read was admitted to bail pending the hearing of this appeal. [2] The appellant argues the sentencing judge committed a variety of errors in principle that resulted in an unfit sentence. The appellant seeks an order varying the sentence imposed to a conditional sentence of imprisonment of the same length. In the alternative, the appellant seeks a shorter term of incarceration. If this Court varies the sentence to a period of incarceration of ninety days or less, the appellant seeks an order permitting him to serve the sentence intermittently. [3] The Crown says the Reasons for Sentence [RFS] do not reflect error in principle and that the sentence has not been shown to be unfit. The Crown emphasizes the deferential standard of review applicable to appeals from sentence: R. v. M. (C.A.), [1996] 1 S.C.R. 500 at paras. 89-90. B. Background [4] The appellant was employed by the City of Burnaby as an exhibit

custodian at the Burnaby Detachment of the RCMP. He had held this position since 1983. [5] The appellant's duties included receiving, cataloguing, storing and maintaining the security and continuity of exhibits seized by the police in the course of criminal investigations. He was appointed a special constable under the Police Act, R.S.B.C. 1996, c. 367, to facilitate the discharge of his duties, including transporting weapons and drugs for disposal at the conclusion of cases. [6] Although supervised by a police officer, the appellant carried out his duties with very little direct supervision and a great deal of autonomy. As the sentencing judge put it, "[e]veryone had relied upon [the appellant] to run the place, to be honest, and make sure that security was there" (RFS at para. 34). [7] The offence was committed in March 2011. At the time of the offence, the appellant was in charge of the exhibit room, including a secure drug locker. He had two other people working for him. One co-worker, Ms. Connor, was also a special constable; the other, Mr. Levas, was a civilian. [8] Sometime in March 2011, the appellant stole almost a kilogram of cocaine from an exhibit box stored in the secure drug locker. The cocaine, which had been marked for destruction, had a street value ranging from $22,000−$44,000, depending on how it was packaged or "cut". [9] The theft was discovered in the

course of an audit. The appellant aroused suspicions when he re-taped boxes containing cocaine before the auditors had finished their examination of those boxes. [10] For obvious reasons, the police took the incident very seriously. A team of senior investigators from the Integrated Homicide Investigation Team was assembled to conduct the investigation. [11] The appellant initially denied responsibility for the offence. He submitted to a polygraph examination. After being told he had failed the test, the appellant confessed to the theft. He told the police that, in an isolated act of inexplicably poor judgment, he had taken the cocaine home and flushed it down the sink. The appellant denied ever having done anything like this in the past. He told investigators he could not explain why he committed the offence. He said, "I made a mistake I don't know why I did it. I don't have a clue. I know it doesn't make sense to you. It doesn't make sense to me right now " The appellant denied being a seller or user of drugs. [12] A voir dire was held to determine the voluntariness of the appellant's confession to the crime. Once the statement was ruled voluntary, the appellant admitted the Crown's case and did not argue against the entry of a conviction. [13] Lengthy Admissions of Fact were prepared by counsel and filed as an exhibit at trial. The Admissions of Fact and the appellant's

inculpatory statement to the police were the foundation for the conviction. [14] The Admissions of Fact include the following: 20. On March 10, 2011, Levas advised Sergeant Clark [one of the officers conducting the audit] that Read had scheduled a destruction of several drug-related seizures. These drug exhibits were located in several boxes within the rear storage room. Levas also indicated that Read had said he did not want the Audit Team looking into these boxes; 21. Sergeant Clark, Constable Wutke [and other members of the audit team] began examining the contents of several boxes of exhibits situated in the rear exhibit storage room that had been marked for destruction 22. At approximately 08:25 hours, the Audit Team went for coffee. When they returned at 09:20 hours, the boxes they had opened and were examining had been sealed (taped) back up. Sergeant Clark began examining the contents of the resealed boxes immediately, with the rest of the Audit Team; 23. Constable Wutke said that Read became upset and asked why they were checking the boxes. Connor left the room; 24. At 09:45 hours, Sergeant Clark found an exhibit bag within one of the re-sealed boxes which was labelled with the number 897 and contained a white powdery substance ("Bag One"); 25. Sergeant Clark did not believe that Bag One contained 897 grams and used a digital scale to weigh it. The weight of Bag One was

344.8 grams; 26. The recorded weight, as per the file details, indicated that there should have been 897 grams of cocaine within Bag One; 27. Constable Wutke believed Bag One had been re-opened because it was cut across the top seam and was taped shut with clear packing tape; 28. At 10:25 hours, Sergeant Clark discovered another exhibit bag within one of the re-sealed boxes which had a tear in it and which contained 72.9 grams of cocaine ("Bag Two"); 32. Constable Wutke told investigators that, after this happened, Read walked into the rear room appearing agitated and grabbed one of the boxes. Read said he had to go through it again with his voice raised, but Levas stepped in to advise Read that the Audit Team would be checking the boxes; 33. Constable Ngo [another member of the Audit Team] told investigators that, at one point, Read entered the room and appeared upset. He asked why they were checking and re-opening the boxes for destruction. Read slammed his hand on the box that was on the work table, said he had sealed it and asked why it was being re-opened [15] The investigating officers responsible for the initial seizure of the cocaine in 2007 confirmed that one kilogram of cocaine was too large a quantity to fit on the weigh scale. It was broken up, weighed and put into two bags. Bag One contained 897 grams of cocaine. Bag Two contained 103 grams of cocaine, less a 9

gram sample for Health Canada testing (94 grams). [16] At the time of the audit, Bag Two was missing 21.1 grams of cocaine (94-72.9 grams). [17] Before the offence was discovered, the appellant was asked to provide another officer with an ounce (about 28 grams) of cocaine for use in an expert witness workshop conducted by a forensic scientist. The appellant agreed, noting he had a bag containing 94 or 98 grams of cocaine. In the presence of the requesting officer, the appellant opened a bag of cocaine the requesting officer believed to contain 94 or 98 grams. The requesting officer confirmed that he took about 28 grams of cocaine from this bag. He did not weigh the amount taken. If this cocaine came from Bag Two, it would fully account for the missing cocaine in that bag. [18] The cocaine in Bags One and Two was analyzed for purity. Bag Two was found to contain 88% pure cocaine. Bag One was found to contain 13% pure cocaine. The remainder of the substance in Bag One was discovered to be sugar. Of the 897 grams of cocaine originally stored in Bag One, only 49 grams of cocaine were left after the theft had been committed and the diluent added. [19] The Admissions of Fact reflect that cocaine is typically imported into Canada at a purity of 90% or higher. Cocaine is usually diluted after importation in order to maximize profits. Diluents include but are not limited to glucose.

Imported cocaine at a purity of 90% or higher will typically be diluted to a purity of 50% or higher. The Admissions of Fact contain an opinion from a police officer, acknowledged to be an expert in the distribution of cocaine in British Columbia, that Bag One had been tampered with and a large quantity of diluent added. [20] The sentencing seems to have proceeded on the basis that the theft related only to the contents of Bag One and that the cocaine missing from Bag Two had been fully accounted for by the evidence that 28 grams had been removed for training purposes. That is the basis upon which I have approached this case. [21] No evidence was called by the Crown or defence on the sentencing hearing. [22] The appellant admitted taking some of the cocaine from Bag One, but denied on the sentencing hearing being responsible for diluting what was left. [23] The appellant's theft did not compromise an ongoing criminal investigation or prosecution. [24] The appellant's counsel advised the sentencing court that his instructions were that the appellant was angry and "stressed out" by the conduct of the Audit Team, stole the cocaine in an impulsive act of frustration, took it home, and flushed it down the sink. [25] The Crown acknowledged it had no evidence to contradict the appellant's version of events as to how he had disposed of the drugs. The Crown noted that the appellant's

position that the theft was spontaneous and unplanned was inconsistent with the admission that sugar had been put in Bag One in an apparent effort to account for the weight differential once the cocaine had been stolen. [26] The sentencing judge noted the explanation advanced on the appellant's behalf that he had been frustrated by the manner in which the audit was being conducted. In his reasons the sentencing judge said this: [17] "according to what you had said to the police at the time of the interrogation and then through your counsel the frustration levels for you just got higher and higher and higher and the anger was there and that, in a moment of crazy passion, you took the drugs from one of the exhibit boxes. You took it home and when you got home, you flushed it down the sink." [18] I am told by counsel that you did not return it the next day when, presumably, the passions had cooled a bit because, one, you had flushed it, and two, because you did not think you could secretly bring it back because the audit team were still there. That is the only explanation that I have as to why this happened. [Emphasis added]. [27] The sentencing judge concluded (RFS at para. 24) that it was not clear when the offence was committed. He did not say he accepted the appellant's explanation that the theft was an unplanned, spontaneous event motivated by his frustration with the audit.

He simply noted that this was the explanation for the offence provided by the appellant. The sentencing judge was, of course, not obliged to accept the appellant's explanation for the offence. Indeed, by the appellant's own admission, the explanation made no sense. [28] The sentencing judge did accept, however, that the appellant did not sell the cocaine on the street for a profit. [29] In the result, the motivation for the offence remains unclear. There was no evidence before the sentencing judge that the appellant used drugs, or had mental health or financial problems. As the sentencing judge noted, "[t]here is absolutely nothing before me to explain why this all happened" (RFS at para. 15). [30] At the time of sentencing, the appellant was 59 years of age. He had no prior criminal record. The appellant, who is divorced, has always been actively involved in raising his three daughters, all of whom were adults when sentence was imposed. Prior to the offence, the appellant was noted to be a hard-working and well-regarded employee. He was involved in his community, participating in and teaching sports. Character letters submitted on his behalf attest to his kindness and community-minded nature. [31] The appellant prepared and provided the sentencing judge with two letters. The first letter expressed remorse. The appellant said he was embarrassed and humiliated by his behaviour.

The second letter addressed how the offence had affected his life. The appellant was fired from his position with the City of Burnaby and now works in a lower paying job. The offence has strained his personal relationships, lowered his standing in the community, and caused him financial hardship. [32] The Crown sought a period of incarceration in the range of 18 months to two years less a day. [33] The appellant's counsel took no issue with the range of sentence identified by the Crown. He said, "I don't think the cases permit me to dispute the range that the Crown suggests in the sense that somewhere in the range is definitely supportable on the authorities in terms of quantum". However, he sought a conditional sentence of imprisonment. [34] The sentencing judge found that although specific deterrence was not an issue, a conditional sentence of imprisonment would be inconsistent with the need to give proper expression to the predominant sentencing goals - general deterrence and denunciation. C. Grounds of Appeal [35] The appellant advanced six grounds of appeal, framed in these terms: 1. The sentencing judge erred when he failed to properly consider the imposition of a CSO in the circumstances of the offence and the appellant; 2. The sentencing judge erred when he applied the wrong test in determining the appropriateness of a CSO; 3. The sentencing judge erred when he failed

to consider exceptional and/or mitigating factors; 4. The sentencing judge erred when he considered the appellant's lack of co-operation and choice to remain silent as an aggravating factor; 5. The sentencing judge placed too much weight on denunciation and deterrence and failed to give any consideration to the principle of restraint; and 6. The sentence imposed is, in any event, demonstrably unfit. D. Analysis [36] I turn next to consider the appellant's grounds of appeal, but will address them in a slightly different order. [37] With respect to the first ground of appeal, the appellant argues that the sentencing judge erred in principle by failing to give "serious consideration" to the appropriateness of a conditional sentence of imprisonment in all circumstances of this case. Instead, he submits that the sentencing judge simply followed the reasoning of another judge in a broadly analogous case: R. v. Demers, 2012 NSPC 130. The essence of the appellant's position on this point is that the sentencing judge failed to undertake the individualized approach to sentencing that is required. The appellant also suggests that the sentencing judge failed to consider all of the statutory prerequisites prior to rejecting a conditional sentence order. [38] I cannot accept either of these submissions. The sentencing judge noted that the case authorities submitted by the Crown and defence

provided guidance in terms of identifying the applicable sentencing principles. But he also expressly affirmed the importance of an individualized sentencing process: [6] The cases that both sides have submitted giving guidelines as to what type of sentence should be imposed in a case like this range everything from a suspended sentence all the way up to eight years. So the frame of reference is very wide. The cases that are put to the Court are for guidance, for the principles that apply or can apply, to a case such as yours. [7] There is no such thing as cases that are like jigsaw puzzles, that this piece matches that piece and, therefore, you fit into a certain box and that is the sentence that you get. The cases display a very wide range of sentences because every case is different. The facts are different. The accused is different. The occupation of the accused is different. The consequences to various people are different. The crime itself that you are charged with can be committed in many, many different ways. [Emphasis added.] [39] The sentencing judge reviewed the aggravating and mitigating circumstances particular to this case in some detail. He took into account the impact of the offence on the appellant's life in determining the sentence (RFS at paras. 2-4, 46). [40] The judge observed that the broad range of sentence applicable to thefts involving a breach of trust

was explained by the "huge variables" that distinguish one case from another (RFS at paras. 9-10). [41] The sentencing judge then set out a lengthy extract from the Demers decision in which all of the statutory prerequisites for the imposition of a conditional sentence order were reviewed. The judge noted that in Demers a conclusion was reached that while a sentence of imprisonment of less than two years was appropriate and the safety of the community would not be endangered by the imposition of a conditional sentence order, such an order would be inconsistent with the sentencing goals of general deterrence and denunciation. The judge was aware of the differences between this case and Demers. Having referred extensively to the reasoning in Demers, the judge said this: [40] I adopt the reasoning in the Demers case as far as looking at whether a Conditional Sentence in your case is appropriate and I have come to the conclusion that it is not. [Emphasis added.] [42] In my view, the reasons for sentence demonstrate that the Court was alive to the particular circumstances of this case and to the factors to be addressed in determining whether to impose a conditional sentence of imprisonment. It is obvious from the reasons as a whole that the sentencing judge was well aware of his obligation to fashion a sentence responsive to the unique circumstances of the offence and offender with

the predominant sentencing goals in mind. The appellant has not persuaded me that the reasons for sentence reflect error in principle as a consequence of the judge's failure to approach his task on an individualized basis. [43] In my view, the appellant's third ground of appeal (that the sentencing judge failed to consider mitigating factors) must also fail. The judge properly identified the mitigating factors. He noted the appellant's expressions of remorse in his letters to the Court. He noted the financial and emotional impact of the offence on the appellant, and the steps he had taken to move on from the offence and rebuild his life, relationships and self-esteem. The sentencing judge said, "I certainly do sympathize with all of the dreadful changes in your life that took place since March of 2011" (RFS at para. 2). [44] The judge also noted the length of time it has taken to complete this proceeding and that, "[i]t was a difficult period of time that you went through in the last five years and that certainly is one of the things that I have considered in deciding what the appropriate sentence should be" (RFS at para. 4). I should add that none of the delay in this case was shown to be unjustified or attributable to the conduct of the prosecution. [45] The sentencing judge noted the appellant's age and that he was a first offender. He said the appellant had been a hard

worker, committed to his family and community. He accepted that the appellant would not reoffend and that the appellant had led an otherwise law-abiding life (RFS at para. 13). [46] The sentencing judge accepted the appellant's position that the breach of trust inherent in the commission of the offence was not quite as severe as it would have been had the offence been committed by a police officer. Rightly or wrongly, he made some allowance for this in the appellant's favour (RFS at para. 33). He also accepted that the appellant had not sold the cocaine he had stolen or derived any financial benefit from the offence (RFS at para. 43). [47] I do not accept the appellant's contention that the sentencing judge erred by failing to characterize as mitigating the fact that the cocaine was scheduled to be destroyed and possessed no value. In my view, these circumstances cannot properly be characterized as mitigating. The appellant's decision to steal cocaine from an exhibit box marked for destruction is consistent with other evidence before the sentencing judge that the appellant applied his mind, before and after the offence, to the steps that would be required to avoid detection. Insofar as the theft did not impair an ongoing investigation or prosecution, I would regard this fortunate circumstance as the absence of what would otherwise be an aggravating factor. [48] The sentencing

judge was disinclined to treat as mitigating the fact that the appellant did not continue to defend the case after the voluntariness ruling - a ruling that made virtually certain he would be convicted of the offence. The appellant did not plead guilty. He was certainly entitled to proceed in this way to preserve his appellate remedies from the voluntariness ruling. Having said that, no mitigation of penalty flows in this case from an early acknowledgement of responsibility for the offence. Further, the sentencing judge was in an advantaged position in determining whether to mitigate penalty as a consequence of the relatively small cost savings that would be realized from the appellant's decision not to defend the case after the voluntariness ruling. I would not interfere with the sentencing judge's exercise of discretion on this point. [49] The sentencing judge noted the absence of considerations that might otherwise operate in mitigation of penalty; for example, a motive for the offence rooted in mental health challenges or drug addiction. The reasons for sentence do not, however, support the appellant's contention that the sentencing judge treated the absence of mitigating factors as aggravating. The sentencing judge simply observed that these mitigating features were present in Demers but not in this case. He noted that, "[t]here is nothing that was so overwhelming in your

particular life that would lead one to say, 'I understand how this man lost his thinking for a moment and then did this'" (RFS at para. 20). [50] The appellant also submits under this ground (although it is likely a distinct complaint) that because he denied responsibility for diluting the cocaine in Bag One, the Crown was obliged to prove this aggravating fact beyond a reasonable doubt: Criminal Code, R.S.C. 1985, c. C-46, s. 724(3)(e). [51] I accept that efforts to conceal an offence can properly be classified as aggravating facts. This is so because concealment efforts tend to demonstrate that the offence was not impulsive, but planned and deliberate. Planned and deliberate acts, in turn, inform a sentencing court's assessment of the moral culpability of an offender. [52] The difficulty the appellant faces on this point is that the sentencing judge made no factual finding about who added the diluent to the bag, nor did he expressly rely on this consideration as an aggravating factor. Whether the circumstances are such that the sentencing judge could have treated this fact as having been proved beyond a reasonable doubt on the basis of the appellant's conviction and admissions is an issue I need not decide. That the sentencing judge did not proceed on this basis inures to the benefit of the appellant. It certainly provides him with no cause for complaint. [53] There was, in

any event, evidence before the sentencing judge that the appellant attempted to conceal the theft. He sought to evade detection by verbally dissuading the auditors from doing their work and by re-taping and putting away the very box from which the theft had been committed before the auditors had completed examining its contents. [54] In his fourth ground of appeal, the appellant argues that the sentencing judge erred in principle by treating his "lack of co-operation" during the early stages of the investigation and his decision to remain silent as aggravating factors. I do not agree. [55] First, the sentencing judge never cited the appellant's "lack of co-operation", nor did he suggest that the appellant's failure to "come clean" at an earlier stage was an aggravating factor. Rather, the sentencing judge expressly recognized the appellant's right to remain silent (RFS at para. 28). He could only have done so to reinforce the notion that exercise of the right could not properly be characterized as an aggravating circumstance. [56] The appellant takes particular issue with this extract from the reasons for sentence: [30] So that there were a number of times along the way where, if truly it was a crime of unexplained momentary lapse of reason that you took it, there were still times after that that you had to clear the air, to either get it back, to come clean and say you took

it, face the music, take responsibility, but you did not, not until you were in a corner and realized that the jig was up. So I have to consider that. [57] I do not read these remarks as reflecting the sentencing judge's determination to treat the appellant's denials of responsibility for the offence after it came to light as aggravating. Rather, I am satisfied the sentencing judge was simply questioning the reliability of the appellant's post-confession explanation that the offence was spontaneous and arose from some ill-defined motive borne out of his frustration with the audit. As noted earlier, there was ample cause for the judge to regard the appellant's version of events with scepticism, particularly given the facts admitted by appellant at trial. The appellant's explanation that he stole the cocaine in a spontaneous act because he was frustrated with the conduct of the auditors makes no sense, either standing alone or in the context of the agreed upon circumstances of the offence. [58] In his fifth ground of appeal, the appellant argues that the judge erred by placing too much weight on denunciation and general deterrence and failed to give any consideration to the principle of restraint. [59] I cannot accept either argument. The weight to be given to any particular sentencing aim falls within the sentencing judge's broad discretion. It was certainly not an error in

principle for the Court to conclude that the goals of general deterrence and denunciation were paramount. I cannot accede to Mr. Reid's argument that the weight the judge gave to these two sentencing principles was "undue" or "unreasonable" in the circumstances of this case. This is the high standard the appellant must meet to motivate appellate intervention on this ground: R. v. Nasogaluak, 2010 SCC 6 at para. 46; R. v. Lacasse, 2015 SCC 64 at para.

49. I am not satisfied this standard has been met. [60] As to the appellant's submission that the judge failed to recognize or give any effect to the principle of restraint, s. 718.2(d) of the Criminal Code provides that, "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances". I cannot conclude, however, that the sentencing judge failed to take account of this principle. The lengthy passage from Demers, cited in the reasons for sentence, addresses the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. The principle of restraint is embedded in these sections. Further, in determining whether a conditional sentence was appropriate in this case, the sentencing judge was obliged to consider whether a sanction less restrictive than incarceration would be appropriate. The inquiry he embarked on under s. 742.1 of necessity overlapped with the inquiry mandated by s. 718.2. Under both provisions he was obliged to determine whether the applicable sentencing principles could be accommodated through the imposition of a sentence short of incarceration. I see no consequential error in principle in this ground of appeal. [61] Finally, I turn to consider the appellant's second ground of appeal that the sentencing judge erred in principle by requiring a demonstration of exceptional circumstances justifying

the imposition of a conditional sentence. In my view, there is some merit in this ground. [62] To put the issue in context, it was the position of the Crown on sentencing that, absent exceptional circumstances, the offence of theft when committed by persons occupying a position of trust should attract a period of incarceration. In support of its submission, the Crown relied on R. v. McEachern (1978), 42 C.C.C. (2d) 189 (Ont. C.A.) at para. 9, where it was noted that, "[t]he public interest requires that it be made very clear to one and all that in the absence of exceptional circumstances a person holding a position of trust who steals from his employer must expect a term of imprisonment". It is noteworthy that McEachern was a Crown appeal from a suspended sentence imposed on an assistant bank manager who had stolen money from customer accounts. In addition, McEachern was decided 18 years before the introduction of conditional sentences of imprisonment. [63] In response to a submission made on the appellant's behalf that a conditional sentence of imprisonment should be imposed, the sentencing judge raised McEachern and asked defence counsel, "[w]hat are the exceptional circumstances here?" This exchange with counsel followed: THE COURT: I need you to elucidate for me, if you can, like in bullet form, what are the exceptional circumstances for Mr. Read? COUNSEL: I am going to do

that. I have got a list of things that I say you should take into account. THE COURT: On the exceptional circumstance part? COUNSEL: I don't know if I'm characterizing them all as exceptional -- THE COURT: But that's what the cases are saying, are they not? That conditional sentences should relate to people who have exceptional circumstances in the commission of the offence. So do I not need, if I want to follow your argument, to say, well, these are the exceptional circumstances for Mr. Read. So far other than being very upset with the intrusion on his territory and the treatment he had, what are the exceptional circumstances for Mr. Read? And that's what I have to know because if you are trying to move me towards a conditional sentence order, I have to be able -- and I'm not saying I'm moving there. I'm just saying if I'm considering it -- I would have to articulate "these are the exceptional circumstances." So unless you give me a bunch of them, I am sort of being led down the garden path here, with respect, but led down the garden path in the sense you are saying he should get a conditional discharge [sic] for all these other reasons. But when it comes to me saying, "Okay. These are the exceptional circumstances," if I draw a blank, I'm in trouble. And that's what I need from you. In order to completely close your argument and say, "Okay. This is what counsel is asking for.

These are the reasons." I know them all up until now. But I need some conditional or some exceptional circumstances. [Emphasis added.] [64] In his reasons for sentence, the sentencing judge said this: [11] What I look at, though, from the case law that is provided, is, are there any general principles that emerge that are applicable to everyone who is charged with theft from a position of trust that they occupied, in particular, people who were either peace officers, police officers, or civilians working in the police department? We have a situation where the general guideline right through everything has been that unless there are exceptional circumstances actual jail should take place. [65] I understand the Crown to argue that the sentencing judge was not expressing a general rule applicable to the offence of theft committed by someone who occupies a position of trust - that a demonstration of exceptional circumstances is required in all such cases in order to justify the imposition of a conditional sentence of imprisonment. Rather, the Crown submits that the sentencing judge was simply acknowledging the practical reality that, in the particular circumstances of this case, imposition of a conditional sentence would be an exception to the uniform manner in which like cases have been dealt with in the past. [66] If the approach of the sentencing judge can properly be

characterized in this fashion, I agree with the Crown. The theft of a considerable quantity of cocaine by an exhibit custodian involves a serious breach of trust and will generally attract a period of incarceration. This proposition is confirmed by the fact that no authority was put before the sentencing judge (or this Court) in which a conditional sentence of imprisonment was imposed in analogous circumstances. The appellant's counsel on the sentencing hearing candidly acknowledged that he had not identified a case with similar facts in which a conditional sentence order was imposed. Although the sentencing judge was obliged to consider whether to impose a conditional sentence, the imposition of such a sentence would have been a departure from the way in which like cases have been dealt with in the past. [67] By contrast, our sentencing jurisprudence rejects the notion that an offence like theft, encompassing as it does a broad range of behaviour and potential moral culpability, ought to be the subject of a presumption against the imposition of a conditional sentence of imprisonment - a presumption that can be displaced only upon a demonstration of exceptional circumstances. Such an approach is inconsistent with an individualized sentencing process and risks reading into sentencing provisions (in this case, s. 742.1) limiting language that is not there. [68] I understand this

to be the point of principle made by Chief Justice Lamer, writing for the Court, in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 81: In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences. [69] The principle was applied by this Court in R. v. Dickson, 2007 BCCA 561, 228 C.C.C. (3d) 450. Ms. Dickson, a bookkeeper, stole money from two employers. The sentencing judge imposed a period of incarceration noting that "there are certain types of offences in which one must demonstrate a clear series of reasons for the imposition of a conditional sentence order". This Court found error in principle in sentencing judge's approach: [30] With respect, I consider this approach to be in error. In effect, the view expressed is that for certain offences, such as serious theft, there is a presumption in favour of a sentence of imprisonment and the accused must show a clear line of reasoning in support of a conditional sentence order. [31] A presumption against conditional sentences was expressly rejected in R. v. Proulx, [2000] 1 S.C.R.

61. Giving judgment for the Court, Chief Justice Lamer said: [85] It is possible to interpret these comments as implying that once the judge has found that the prerequisites to a conditional sentence are met, a conditional sentence would presumably be consistent with the fundamental purpose and principles of sentencing. Assuming that Helper J.A. intended to suggest that there ought to be a presumption in favour of a conditional sentence once the prerequisites are met, I respectfully disagree with her. For the same reasons that I rejected the use of presumptions against conditional sentences, I also reject presumptions in favour of them. The particular circumstances of the offender and the offence must be considered in each case [70] A similar approach was taken by this Court in R. v. Burkart, 2006 BCCA 446, 214 C.C.C. (3d) 226 at paras. 18-20, where error in principle was found as a consequence of the lower court's determination that "unusual circumstances" were required to justify the imposition of a conditional sentence of imprisonment for theft involving a breach of trust. [71] It may be that the sentencing judge was simply saying that a conditional sentence of imprisonment in the particular circumstances of this case - theft of a fairly large quantity of drugs by a peace officer acting in the capacity of an exhibit custodian - would be an exceptional disposition on the

authorities put before him (see para. 65, infra). He was not wrong to make this observation. [72] Having said this, I acknowledge that the matter is not free from doubt. Particularly in his exchange with counsel, the sentencing judge appears to have proceeded on the basis that McEachern was the governing authority and that exceptional circumstances needed to be shown to justify the imposition of a conditional sentence of imprisonment for a theft offence involving a breach of trust. [73] In light of the uncertainty surrounding this matter, I am prepared to proceed on the premise that the sentencing judge considered that a demonstration of exceptional circumstances was required to justify a conditional sentence of imprisonment in theft cases involving a breach of trust. On this premise, he erred in principle. [74] Proceeding on the footing that the judge's reasons reflect error in principle does not, however, end the matter. The appellant must show that the error in principle had an impact on the sentence in the sense that it resulted in an unfit disposition: R. v. Sangha, 2014 BCCA 379 at para. 28; Lacasse at para. 42-47. [75] Even approaching the matter with fresh eyes, I am unable to conclude that the sentence imposed in this case is unfit. [76] Offences of the kind committed by the appellant implicate public confidence in the administration of justice. The public rightly

expects and must be assured that justice system participants who share responsibility for the administration of criminal justice will not give way to temptation, but will honour the trust that has been reposed in them through selfless, honourable service. As the sentencing judge put it, individuals in Mr. Read's position must act with "unconditional faithfulness" to the due and proper administration of the law. Departures from this high standard will be met with sentences that denounce the conduct in the clearest of terms and send a strong message of general deterrence to similarly situated individuals. [77] Offences of the kind committed by the appellant are also difficult to detect. Exhibit custodians oversee the destruction of drugs and weapons. Their position puts them at the end of the line in the administration of criminal justice. If they give way to temptation, it is unlikely their conduct will ever be discovered. When offences like this are detected, sentences must be imposed that dissuade similarly situated individuals from abandoning the important responsibilities the public relies on them to discharge. [78] In addition, the sentence imposed in this case had to give effect to the direction of Parliament that abuse by the appellant of his position of trust be treated as an aggravating circumstance: Code s. 718.2(a)(iii). [79] I have not lost sight of the appellant's

favourable antecedents. That he is a man of previous good character is unquestionable. Unfortunately, in cases of this kind, the previous good character of the accused is a condition precedent to attainment of the trust position breached in the commission of the offence. That said, the appellant is entitled to have his previous unblemished record and history of service to his community weighed heavily in the balance. [80] Having taken into account the isolated nature of the offence and the appellant's favourable antecedents, I am still unable to say that the 14-month period of incarceration for this offence and offender is unfit. In my view, and recognizing the principle of restraint embedded in s. 718.2 (d) of the Code, the imposition of a conditional sentence of imprisonment in the particular circumstances of this case would be inconsistent with the predominant sentencing goals of general deterrence and denunciation. It would also result in a substantial and unwarranted departure from the manner in which cases with similar features have been dealt with in the past, including cases post-dating the introduction of conditional sentences: see R. v. Tiller, 2016 BCSC 187; R. v. Bannon, 2011 ONSC 3000 at paras. 37-41, aff'd 2012 ONCA 557; R. v. Cook, 2010 ONSC 5016 at paras. 29, 35-37; R. v. Cusack, [1978] N.S.J. No. 538, 41 C.C.C. (2d) 289 (C.A.) at paras. 13-14; Demers at paras. 3, 8, 13-16. [81] For these reasons, I would dismiss the appeal. "The Honourable Mr. Justice Fitch" I agree: "The Honourable Madam Justice Newbury" I agree: "The Honourable Mr. Justice Harris"