Held to a Higher Standard: The Difficulty in Sentencing Police Officers in R v Letkeman - Eric Epp

Introduction

Police officers hold a duty of high level of public trust by the community because they have statutory powers to act beyond what would normally be considered reasonable by civilians. This trust comes with the concept that police officers who commit acts beyond the special powers accorded to them and become criminal will be dealt with harshly by the courts. This creates an interesting discussion when determining sentences for police officers who have acted beyond their statutory powers. This was at issue in R v Letkeman, a 2021 Manitoba Court of Appeal case concerning the proper sentencing of a police officer convicted of criminal negligence causing bodily harm during a drunk driving pursuit in Thompson, MB.

Facts

In the incident, Mr. Letkeman engaged in a low-speed pursuit with a fully occupied vehicle which ended disastrously after he twice attempted to stop the car using driving maneuvers that he was not trained to do. This ultimately resulted in the death of the driver, Mr. Campbell, which Mr. Letkeman was found not responsible for, and serious injury to Ms. Flett, a passenger of the vehicle. The evidence was accepted that these were poor policing decisions made by Mr. Letkeman, and that the attempted takedowns represented “a wanton disregard for the lives [and] safety of others.”[1]

At sentencing, the trial judge noted that when sentencing police officers, the standard is to hold them to “a higher standard than would be expected of ordinary citizens” and that denunciation and deterrence are the fundamental guiding principles in such cases.[2] The judge also used other driving offences as a guide for determining the appropriate sentence for Mr. Letkeman, one that ultimately lacked incarceration. The Court of Appeal said this was an unhelpful categorization, as the issue was not simply dangerous driving but rather the excessive force that was used in response to the pursuit.[3] However, they disagreed significantly on the context of the force, which led to disparate opinions; the majority ruled in favour of a three month incarceration that would be stayed, while the dissent recommended a thirty month incarceration.

Sentencing Principles

The underlying ideas behind harsh sentencing for police officers are denunciation and general deterrence. An appearance of leniency with police officers would undermine public confidence that the police can be appropriately trusted with their special powers. This principle was noted in R v Ferguson, when the SCC determined the sentencing of another police officer.[4] It is also statutorily encompassed as a principle of sentencing at s. 718.2(a)(iii) in the Criminal Code under the concept of abusing a position of trust.[5] That being said, police conduct when compared to civilian conduct may often be done in pursuit of public safety, which is a considerable mitigating circumstance in determining moral blameworthiness.[6] However, I agree with Justice Burnett that it would be a leap to say that this crime was committed in the name of public safety and it would be inappropriate to consider that heavily when determining the sentence, as was done by Justice Simonsen.[7] As noted in the evidence, the first crash was unwarranted given the deserted streets and low speeds, and the second crash occurred at a time when Mr. Letkeman’s vehicle was already stationary. It is hard to see how any of the attempted takedowns were warranted by a need for public safety; if anything, they elevated the danger present.

The “Blind Spot” Mitigating Moral Blameworthiness

It was generally agreed that the trial judge erred in considering Mr. Letkeman’s personal circumstances and “blind spot” towards drunk driving when considering an appropriate sentence. The sentence originally given was a largely rehabilitative sentence, which was determined to be inconsistent with the principles of deterrence and denunciation. The majority noted that while a jail sentence was of little benefit for Mr. Letkeman, it had the important purpose of deterring the potential for other police officers to act beyond their authority.[8] Barrett JA similarly remarked that the conduct of an accused is more important than their personal circumstances when determining a fit sentence and that a jail sentence would be appropriate.[9]

I agree that considering this blind spot as a significant mitigating factor is inappropriate for a sentence where deterrence and denunciation is the primary goal. It is worth remembering that Mr. Letkeman’s blind spot led to unnecessary and dangerous actions that put everyone in the vehicle at risk. While acknowledging that police officers must act quickly when determining how to address a situation, one cannot forget that the duty police have is to society at large. Allowing misplaced anger to overtake one’s emotions and recklessly put lives in danger must lead to resounding denunciation from society. The Court of Appeal is right in deciding that the largely rehabilitative sentence crafted by the trial judge was decidedly inappropriate.

Public Safety Context

The sentencing difference between the majority and the dissent speaks to a fundamentally different view of whether the crime was committed in the name of public safety. The majority decision from Justice Simonsen, while acknowledging the officer’s actions rightfully as an excessive force crime, still understates the severity of this type of force and the consequences that occurred. Justice Simonsen points to the fact that this was committed under a misguided attempt to protect the public in accordance with the police statutory duty.[10] This gives far too much allowance to the actions of Mr. Letkeman. Given the documented history of Mr. Letkeman when it comes to his thoughts on drunk driving, the evidence of the vehicle no longer moving, and the deserted nature of Thompson that night, I agree with Justice Burnett that the “public safety concerns . . . were minimal or non-existent.”[11]

The High Standard of Police Conduct and Sentencing

Police officers are highly trained to determine how to best respond to public safety threats. This was not a situation where Mr. Letkeman needed to make quick decisions in a life and death situation until his actions made it so. Given the relatively low stakes, the conclusion from Justice Simonsen seems to fundamentally undermine the idea that police officer conduct must be dealt with more harshly than civilians. The review of decisions involving civilians incarcerated for the same offence showed a range of sentences from twelve months to six years.[12] As noted, police officers are held to a higher standard. In a low-speed pursuit in the middle of the night on deserted streets, one would hope that a police officer can differentiate between the need for the type of force used in this case and a more reasonable response. In the initial trial, it was noted that nothing in the circumstances showed there was anything out of the ordinary from this specific instance of suspected impaired driving.[13] There is little on the face of the evidence to ever justify any of the actions taken beyond the initial pursuit. To have a lighter sentence than civilians convicted of similar offences is illogical in consideration of the deterrence and denunciation principles.

Despite ultimately imposing a harsher sentence on appeal, this case illustrates that while police officers are fundamentally in a position where they are at risk of harsher sentences, there is a wide definition of what constitutes acting in the name of public safety as a mitigating factor. Although the pursuit was prompted by the need for public safety, the crashes were not. They were prompted by Mr. Letkeman’s noted blind spot for drunk drivers, and he certainly ought to have been aware that his actions imposed a serious risk on the occupants of the vehicle. Despite this, Justice Simonsen concluded that this was done in the name of public safety and factored that into her sentence. This opens the door to unnecessary lenience when police officers commit crimes only negligibly associated with their duties. If genuine deterrence is a fundamental principle when sentencing police officers, the definition of acting in the name of public safety should be narrow for sentencing. As noted by Justice Burnett, public confidence in the administration of justice is one of the most important reasons why police officers who use excessive force will be dealt with harshly. Considering the current state of public opinion of the police, this narrow definition for what constitutes acting in the name of public safety is important in maintaining what public confidence is left.[14] This narrow definition of public safety response appears to be how Justice Burnett approached this issue in recommending a thirty month incarceration. I believe this is the correct approach.

Conclusion

The police are furnished with extensive statutory powers under s. 25 of the Criminal Code.[15] However, once they have been determined to have not acted in accordance with those powers, the courts are to deal with them harshly as a way of maintaining public confidence through deterrence and denunciation. Courts should be careful not to give a wide definition to “acting in the name of public safety” since this concept is already reasonably implied by s. 25. Only in the most obvious of cases should a public safety response reduce an aggravating factor or become a mitigating factor when sentencing police. While a standard of perfection is not what is asked of police, in lower risk situations such as this one, it does a disservice to the public to allow a finding of public safety response to reduce what should be a harsh sentence as the Court of Appeal has done in this case.

[1] R v Letkeman, 2019 MBQB 124 at paras 71 and 85 [Letkeman QB]. [2] R v Letkeman, 2020 MBQB 12 at paras 16 and 18. [3] R v Letkeman, 2021 MBCA 68 at para 130 [Letkeman]. [4] R v Ferguson, 2008 SCC at para 28. [5] Criminal Code, RSC 1985, c C-46, s. 718.2(a)(iii) [Code]. [6] Letkeman, supra note 3 at para 39. [7] Ibid at para 135. [8] Letkeman, supra note 3 at para 56. [9] Ibid at para 126. [10] Ibid at para 72. [11] Ibid at para 135. [12] Ibid at para 151. [13] Letkeman QB, supra note 1 at para 56. [14] Statistics Canada, Public Perceptions of the police in Canada’s provinces 2019, by Dyna Ibrahim, Catalogue 85-002-X (Ottawa: Statistics Canada, 25 November, 2020) <www150.statcan.gc.ca/n1/pub/85-002-x/2020001/article/00014-eng.htm> [perma.cc/Z56J-JN4Q]. [15] Code, supra note 5, s 25.