• Lewis Waring

Police Accountability Through Sentencing - April Lount

R v Doering (“Doering”) is an Ontario case in which a police officer was charged with failure to provide the necessaries of life and criminal negligence causing death. This case provides an example of the Ontario Superior Court of Justice’s (“the ONSC”) approach when dealing with police-involved fatalities and duty of care. Activist groups such as Black Lives Matter and Defund the Police have brought attention to how the judicial system treats police differently, and this has subsequently developed into an international discourse surrounding police use of force and accountability. While police use of force is largely protected in Canada through provisions such as section 25 of the Criminal Code (“the Code”), the ONSC’s analysis in this instance reveals that (surprisingly) police can expect much less leniency where violence is not at issue.


Facts


The facts of Doering surround Ms. Chrisjohn and her encounter with police. Constable Doering was dispatched to a Petro Canada where Ms. Chrisjohn was high on methamphetamine. Even though Ms. Chrisjohn had previously been acting erratically, when he first engaged her to put her in the back of the police vehicle, Constable Doering’s testimony stated that she was “cooperative”. Shortly afterwards, while the car was still parked, Ms. Chrisjohn started exhibiting “erratic and delusional behaviour”. In cross-examination, he “agreed that [at this point] her consciousness level, if 10 is full alert and awake, was a 4”. Having ample exposure to people high on crystal meth, this did not seem unusual to him. Constable Doering also had an exchange with a paramedic on site and they both came to a consensus that she would not be assessed on site because of her behaviour, and if he were to take her to hospital “she would just sit there for hours while being monitored.” This bolstered his belief that it would be safe to take her straight into custody.


Things changed when Constable Doering then began driving to transfer Ms. Chrisjohn over to officers of the Ontario Provincial Police (“the OPP”). “By the time they reached the meeting place, Ms. Chrisjohn was unable to speak, unable to sit up for any period of time, and unable to respond to commands.” This was approximately 45 minutes after leaving Petro Canada and one of the OPP officers described her as “lying on the rear seat of the cruiser, moaning and shaking”. What’s more, Constable Doering indicated to the OPP officers during the transfer that she had been assessed by Emergency Medical Services (“EMS”) and she had been in the same condition throughout. While the OPP officers called for EMS soon after, medical intervention was too late and she died from “a toxic level of methamphetamine resulting in a heart attack”.


The Significance of the Accused’s State of Mind


While the traditional criminal offence requires proof of subjective mens rea, negligence offences differ from this standard. In penal negligence cases, “the test for liability is a modified objective standard”, asking whether a reasonably prudent person, with the same knowledge of the situation, “would have appreciated the risks associated with the act or failure to act”. The law in this scenario is therefore not concerned with what was actually going on in the person’s mind; rather, a court uses a comparative legal technique that engages the concept of the reasonable person. This is the objective standard for liability validated in R v Creighton, and it is on this basis that a court establishes the conviction for both failure to provide the necessaries of life and criminal negligence causing death.


Application to the Case


Expectedly, Constable Doering maintained that his conduct did not amount to a marked departure from the standard of care of a reasonably prudent person. While the ONSC accepted that it is possible, maybe even likely, that Constable Doering “did not subjectively perceive that Ms. Chrisjohn required medical attention and treatment,” this did not exculpate him from liability. A reasonably prudent police officer would have registered there was a need to seek medical treatment for Ms. Chrisjohn. Constable Doering’s defence that he “firmly believed that use of methamphetamine was not a reason, standing alone, to obtain medical attention” was found to be simply inapplicable to the objective standard presented in this scenario. Justice Pomerance affirmed that obviously not all persons on drugs “must be taken to the hospital”; there will be many instances where they do not but, for someone who was known to be on methamphetamines and who became unresponsive in custody, this was a clear indicator to seek medical attention. In addition, he knowingly misled the OPP at Ms. Chrisjohn’s transfer. “There is no other rational interpretation of the evidence”. He fell short of his duty, breaching the public trust, and therefore the court held him accountable. While this scenario is a relatively straightforward example of failure to provide the necessaries of life and criminal negligence causing death, the outcomes for police trials aren’t always so predictable.


Comparison


Comparing the ONSC’s response to other police cases brought to trial, it is somewhat surprising to see the strict application of the charges. It is worth noting that the procedural aspects behind police criminality involves a lengthy investigative process by an independent provincial body before charges can be recommended to the Crown’s office. This means that charges against police have already been vetted to have substantive merit even before Crown discretion is involved. In addition, when cases do make it to court, police are privileged under section 25 of the Code that protects police officers from a degree of liability in the execution of their duties. These protections mean that use of force is often acquitted or down-graded to less serious charges. For example, in R v Letkeman, the officer recklessly crashed twice into a vehicle before shooting and killing and occupant. Letkeman was charged with a total of six offences, including an array of firearm offences, but was only convicted of criminal negligence causing bodily harm. Another example is R v Forcillo, where the officer shot a man three times, killing him, and then shot him another six times. Forcillo was charged with second-degree murder and attempted murder; but convicted of attempted murder. However, Doering reveals a very different judicial approach to police criminality where use of force is not at issue. This is largely because when police are not using force, they are not protected under section 25 of the Code. In fact, Doering and comparator cases like R v Schertzer (where there was also a breach of public trust), suggest that police will actually be held to a stricter application of the law. This is because police occupy a “special role and authority of police in society. The powers conferred on police require that they be held to a high standard of accountability”.


At sentencing, Justice Pomerance found denunciation to be critically important in cases where there had been a breach of public trust by police officers. Justice Pomerance seemed to reference the more recent societal tensions with police, saying, “[s]ocietal values are not static. They shift as the public becomes increasingly conscious of social issues. Sentencing is directly related to the existing needs of society.” The impression is that the judicial system is listening and, while police may be protected though section 25 of the Code where there is use of force, they will not be afforded comparable privileges were the provision does not strictly apply.


Final Observation


In conclusion, Doering serves to exemplify that there are some circumstances in which police are held to equal, if not greater, accountability under the law. It remains disturbing to think that police powers are granted so much leniency in scenarios where there is use of force, but at least it appears that the judicial system is becoming sensitive to the societal concerns surrounding policing. Doering suggests that the judiciary, or at least Justice Pomerance, takes the position that the role of police and their obligations operate with legal gravity and will be treated as such.



Check out the Robson Crim MLJ
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