The Crown is appealing the sentences of the former Toronto police drug squad officers who were convicted of perjury and obstruction of justice and received 45-day conditional sentences (house arrest) on January 4 of this year.
If some members of the public reacted to the sentences with incredulity and reproach, it is understandable.
Incredulity because, after all, perjury and obstruction of justice convictions almost always result in a custodial sentence for most people. Why not so when police officers, whose role is to uphold the law, are the ones who intentionally mislead or lie to the court and undermine the administration of justice?
Reproach because the judge appeared to have treated the police officers more favourably than others who are convicted of the same offences. The judge's sentence appeared to send a message that police officers, at least when it comes to sentencing, will be given preferential treatment and will receive lighter sentences.
In fact, in most cases of perjury or obstruction of justice which involve a lay person, the accused do end up with long custodial sentences.
In R. v. Jackson, a B.C. case, the accused initially received seven months jail for his perjury charge. The Court of Appeal increased that sentence to 30 months, and stated that perjury is to be treated seriously because of "its corrosive effect on the proper administration of justice."
In an Alberta case involving a relatively less significant case of perjury, the accused, Spath, plead guilty and received a one year jail sentence.
In another Alberta case, R. v. Corbett, a young accused forged a letter of employment for his sentencing and was charged with perjury. His sentence on the perjury was 12 months jail.
In a 2000 Ontario Court of Appeal case, R. v. D.(C.), the accused received a one year prison term for perjury. The court reinforced that perjury must carry a term of jail, because it "strikes at the heart of the administration of justice."
In another Ontario case (R. v. Robinson) this one from 2009, a 46-year-old mother and first-time offender received eight months for her lie to the court.
In a Newfoundland case where another accused, Kendall, lied under oath, the 42-year-old offender, who had no criminal record and whose pre-sentence report said that he was a suitable candidate for a conditional sentence, nonetheless received a three-month jail term because the judge said that it would be contrary to the fundamental principles of sentencing to give someone a sentence other than jail for perjury.
Over and over, the courts have emphasized the importance of sending a message to the public that lying to the court is a serious offence, and that incarceration is warranted in cases of perjury in order to deter the offender and others from lying to the courts, and to denounce the act.
Yet somehow, when a group of police officers were convicted of perjury or obstruction of justice, they received a mere 45-day sentence, to be served in the community, which means that they will serve their time mostly at home, with certain restrictions, and a few hours a week allotted for errands.
There are, in fact, cases where a conditional sentence has been granted for perjury. But such cases are extremely rare. In the 2006 Ontario case of R. v. Graham, the accused lied at her son's bail hearing about her address of residence to help him get bail. When the truth was quickly discovered, she was charged with perjury. No one was harmed. This mother of six had no criminal record, did not hold a position of trust (as police officers do), was in charge of an eight-year-old who had Down Syndrome, and she herself suffered from some physical ailments. She did receive a conditional sentence, but in order to ensure that the principle of deterrence was protected, the court gave her a 15-month conditional sentence, plus 100 hours of community service.
No short 45-day sentence for this woman.
In fact, defence council in the drug squad officers' case provided the court with several cases where, not surprisingly, police officers had been granted non-custodial sentences for perjury or obstruction of justice.
The Crown is now asking the Court of Appeal to reconsider those 45-day conditional sentences, and to hand down tougher sentences to the officers. The question for the Court of Appeal will be whether or not the trial judge handed down inappropriate sentences.
If the appeal court were to follow the principle of parity and stay in line with previous cases of perjury and obstruction, it would have to change the sentences to custodial ones. If it does not do so, the Court will likely try to carve out a niche for very exceptional circumstances where a conditional sentence may be granted, or will simply defer to the trial judge. Either way, if the Court of Appeal does not change the sentence to a custodial one, the message that officers can get away with lighter legal ramifications will be amplified.
In reality, the trial judge's humane and considered approach to sentencing these officers is laudable. She very carefully considered the police officers' personal histories, the traumatic impact of the charges on their lives and their families' lives, and their emotional and psychological states.
The problem is that we don't seem to take the same humane, empathetic approach to other offenders who are not officers.
In a more equitable world, every accused, through his or her lawyer, would have the resources, the skill, and the ability to paint a sympathetic picture of how the accused have suffered in the criminal justice system and the negative and emotional impact of the charges on their lives. Every judge would be able to relate to the accused person, and, while condemning the accused's actions, would take note of the traumatic effects of the being accused of a crime and the potentially dangerous and horrible effects of being jailed.
The result might be less jails and possibly a more effective and humane criminal justice system.