Appropriate Sentence for Excessive Force by Police Officer

It is axiomatic that nobody should be above the law, and perhaps equally accepted that law enforcement is a necessary component for ensuring adherence to the law.

However, public confidence requires that police officers who use excessive force are also dealt with appropriately by the courts, and that their roles within the justice system does not result in complete immunity from prosecution.

The Manitoba Court of Appeal recently released a decision in R v Letkeman, which reviewed the non-custodial sentence imposed on an RCMP officer. The accused was sentenced to a 3-year probation order for criminal negligence causing bodily harm, which occurred while on duty operating the cruiser car. The facts were described as followed:

[2] The offence occurred after the accused decided to follow a Jeep (the Jeep) which he suspected was being operated by an impaired driver due to the manner of driving. In the course of the approximately four-minute, slow-speed pursuit, during which the driver did not comply with a traffic stop, the accused twice intentionally struck the Jeep. On the first occasion, in a vain attempt to stop it, he deliberately collided into it, using a “precision immobilization technique” or PIT maneuver, which he was not trained to perform. On the second occasion, he intentionally T-boned the side of the Jeep while it was stationary, in a further attempt to disable it and stop its driver. The second impact caused serious injury to Lori Flett (Ms Flett), who was a passenger in the Jeep.

The sentence was subject to the compulsory conditions in ss. 732.1(2)(a), (b) and (c) of the Criminal Code, which include keeping the peace and being of good behaviour, and included community service of 240 hours within 18 months, a fine of $10,000 within 3 years, and a 12-month driving prohibition. During sentencing, the judge stated,

[35] There are few mitigating circumstances of the chase and crashes. Specifically, and importantly, is that at least initially, Cst. Letkeman was duty bound to try to stop the Jeep as he suspected the driver was impaired and was thus a potential risk to others. It was not a high-speed chase, few other members of the public were at risk, and apprehension of drunk drivers merited such police action. Further, I do not find he intentionally meant to hurt anyone, he was simply blind to what should have been obvious to him. Otherwise, I also note Cst. Letkeman’s solid character and model conduct. His remorse and regret are real, and deep. Given the various charges he faced, the absence of a guilty plea does not affect my view of his remorse.

[45] In the end, the terrible irony is plain: in trying to protect the public by stopping Mr. Campbell from driving, Cst. Letkeman caused the very harm he was trying to stop — he seriously hurt Ms. Flett and risked injury to everyone else in the Jeep. These were people who also deserved his protection, like any member of the public. Incidental to the physical harm, Cst. Letkeman destroyed the policing career he loved so much. All of this was senseless, but he genuinely could not foresee it.

The trial judge also found the officer guilty of dangerous driving causing bodily harm, but these charges were stayed based on the rule against multiple convictions. However, this still comprised part of the factual matrix of the case, and the judge stated,

[55] Constable Letkeman’s act of causing this first collision was dangerous under all the circumstances and a marked departure from the standard expected. It was indiscriminate; taken at serious risk of injury to himself and to passengers in the Jeep. Nothing warranted it. Alternately, if he truly thought it was warranted, he should have discontinued the pursuit and taken other action, all as required by s. 9.1 of the pursuit policy, which mandates a pursuit to end when risk to life becomes too great, the pursuit becomes futile or other means of apprehension are possible. If he had been trained in [Precision Immobilization Technique] procedure, he would have known not to try it here.

[56] Ultimately, I do not accept Cst. Letkeman’s explanation that his risk assessment, such as it was, could possibly bring his act of causing this crash within a range of proportionate force under these circumstances. I note that nothing in Cst. Letkeman’s communication to OCC, either the content or tone, suggests that he found this suspected impaired driving situation to be out of the ordinary. There was no hint of any significant concern. While I have doubts about the genuineness of Cst. Letkeman’s subjective perception as he explained it, I have no doubt that objectively it was misplaced. It was a rash, undisciplined move to attempt this flawed procedure. It amounted to unjustified and excessive force that I find was objectively disproportionate to the risk Mr. Campbell then posed.

The Court of Appeal applied the Friesen standard of review to the sentence, to assess if it was demonstrably unfit, or if the sentencing judge made an error in principle that had an impact on the sentence. They concluded that the objectives of denunciation and general deterrence could be met without incarcerating the accused,

[97] For the above reasons, leave to appeal is granted, and the appeal is allowed in part. The probation order, including the requirement for community service, is set aside; the fine of $10,000 is retained; and a period of incarceration of three months is imposed. I would stay the execution of the custodial part of the sentence. As neither party raised any issue regarding the one-year driving prohibition, it remains.

The dissent agreed that the sentence imposed did not reflect the principles of denunciation and deterrence and the trial judge understated the accused’s moral blameworthiness, but departed from the majority in that the trial judge failed to adequately give weight to general denunciation and deterrence,

[105] It is inconceivable that a civilian offender in similar circumstances would receive such a lenient sentence.  A fine was never a fit sentence—or a component of a fit sentence—for this offence and this offender. Leaving aside the fact that most offenders could not afford to pay a $10,000 fine, a significant period of incarceration was—and is—required.

[158] Ms Flett was an innocent victim and her injuries were extremely serious. If a civilian offender had committed this offence, a significant jail term would have been imposed.  To be more specific, if an ex-boyfriend/girlfriend or a person with a grudge or road rage had committed this offence, the sentence would not be a fine and community service. A civilian would receive a significantly greater sentence, and certainly not less than two years’ incarceration, even if the offender was previously a person of good character, like the accused.
[emphasis added]

The role of denunciation for a sentence imposed on a police officer takes a very different role, especially with heightened scrutiny on the use of excessive force. Its importance at this time though may never be greater.

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