Court of Appeal: Cheese Smuggling by Police (Woulda, Shoulda, Gouda)R. v. Heron, 2017 ONCA 441 (CanLII)
Keywords: Conspiracy to Smuggle (here, cheese); Breach of Trust By Public Official (here, police officers)
The Appellant is convicted of conspiracy to smuggle (here, cheese) into Canada from the United States. The cheese is sold to local restaurants for profit at discount prices made possible by evading the 246% duty. About $133,000 of cheese and other food is smuggled, with the result that about $325,000 worth of duty is evaded. The Appellant and his accomplice are police officers with Niagara Regional Police. As such, he is also convicted of breach of trust by a public official.
The Appellant does not appeal the smuggling conviction, but seeks to set aside the conviction for breach of trust and leave to appeal from sentences (three month imprisonment for the smuggling offences and one months’ imprisonment, consecutive, on the breach of trust offence).
The Appellant raises one ground with respect to his breach of trust conviction: that the trial judge erred in finding the only reasonable inference to be drawn from his running a Canadian Police Information Centre (“CPIC”) check on the licence plate of his accomplice and fellow police officer was that he made the search to evade detection and/or determine to what extent law enforcement was aware of their activities.
The Court of Appeal rejects this submission; finds the conviction appeal must be dismissed. The Appellant’s sentences are confirmed.
As a police officer, the Appellant was entitled to access CPIC, but only for matters relating to his duties as a police officer. The CPIC database provides information about the subject of a search, and also provides information about who else has conducted a similar search within the previous 120 hours. (See para. 9).
The Court of Appeal found the timing of the Appellant’s searches to be significant. In this case, the Appellant accessed the CPIC database at the beginning of his first shift after learning from his accomplice that the cheese smuggling scheme may have been compromised. As such, “If someone else – someone else who could be identified – had conducted a similar enquiry recently it would suggest that the police were investigating…and provide insight into what was going on at the time” (See para. 9).
The Court of Appeal agreed with the submission of the Crown that the “overwhelming, irresistible and only reasonable inference on the record” was that the Appellant conducted the CPIC search to ascertain the status of any ongoing police investigation of his cheese smuggling operation. The Court also noted that neither Appellant’s counsel, nor the Appellant himself put forward any plausible alternative explanation for the CPIC search. (See para. 10). For the Court of Appeal, the Trial Judge did not err in concluding “on the totality of the circumstantial evidence that the appellant conducted the CPIC enquiry for the reasons he indicated, and not for legitimate reasons relating to his duties as a police officer.” (See para. 11).
With respect to the Appellant’s appeal from sentence, the Court of Appeal cited R. v. Lacasse, 2015 SCC 64 (CanLII) at paras. 11 and 39-44 and affirmed the point that a sentencing judge is entitled to wide latitude from a reviewing court: “Absent an error in principle, the failure to consider a relevant factor, or an overemphasis of appropriate factors, they will only interfere to vary a sentence imposed at trial if the sentence imposed is demonstrably unfit”. (See para. 23).
In this case, the Court of Appeal agreed with the Trial Judge’s assessment that “It sends a very discouraging message to the public to let them know that police officers can get away with profiting from abuse of their credentials” (See para. 26). For the Court of Appeal, the Appellant’s sentences were deemed “well-justified in the circumstances” and the Appellant’s appeal was dismissed. (See para. 28).
Counsel for the Appellant: Andrew Furgiuele (Doucette Santoro Furgiuele, Toronto)
Counsel for the Respondent: David Quayat (Royle, Edward H., & Associates, Toronto)