The image of the Royal Canadian Mounted Police (the “RCMP”), Canada’s national police force, has been tarnished in the last couple of years. In BC, allegations of workplace sexual harassment have culminated in a class action lawsuit against the RCMP. Most recently, significant controversy has arisen from the sentencing of Benjamin “Monty” Robinson, an Aboriginal RCMP officer, for obstruction of justice. Ian Mulgrew, of the Vancouver Sun, wrote an article entitled, “Cpl. Monty Robinson’s house arrest for fatal crash is a perversion of justice“, condemning the judge’s sentencing decision as too lenient. Was it really a perversion? Let me outline some factors for your consideration.
In October of 2008, Mr. Robinson was drinking at a party and proceeded to drive himself and his children home. He got into a motor vehicle accident with a motorcycle and fatally wounded the motorcyclist. Mr. Robinson gave his identification to a bystander and drove himself and his children home, where he then took “two shots” of vodka, and thereafter returned to the scene of the accident. He then lied to the officer on scene about how much he had drank.
The Crown prosecutor (presumably) would have charged Mr. Robinson with driving under the influence. But, it would have been essentially impossible to prove beyond a reasonable doubt that Mr. Robinson’s blood-alcohol content was over 0.08 at the time of the accident because he took two shots of vodka immediately after the accident. Instead of being charged with drunk driving, Mr. Robinson was charged with “wilful attempt to obstruct, pervert, or defeat the course of justice” in contravention of s. 139(2) of the Criminal Code of Canada (the “Code”), i.e. obstruction of justice. In March of 2012, Justice Dillon found Mr. Robinson guilty of obstruction of justice.
Mr. Robinson was sentenced on July 27, 2012. The Crown prosecutor requested imprisonment of a period between 3 to 9 months or a conditional sentence of 12 to 18 months. Defence counsel requested a conditional sentence for a period of 3 to 6 months.
After considering various aggravating and mitigating circumstances, Justice Dillon sentenced Mr. Robinson to a conditional sentence of 12 months. For approximately the first month, Mr. Robinson is to remain in his residence 24 hours a day, with exceptions to leave for permitted purposes (e.g. medical service, religious observance, court attendance, etc.). Afterwards, Mr. Robinson must be home between 9:00 p.m. and 6:00 a.m., except for permitted purposes. Among other conditions, Mr. Robinson was also ordered to do the following: a) complete treatment programs and/or counselling; b) pay a victim surcharge fine of $1,000.00; c) abstain from consuming drugs and alcohol; and d) write a letter of apology to the victim’s family, whether or not the family would accept the letter.
Ian Mulgrew stated that this was a travesty and an insult, calling Justice Dillon’s reasons sophistry. He states that while Mr. Robinson is an Aboriginal, he is not the victim of systemic racism or neglect. He feels that the judge gave Mr. Robinson a get-out-of-jail-free pass as a result of a legal loophole (i.e. his Aboriginal status). Mr. Robinson is still facing perjury charges laid against him for his testimony in relation to the death of Robert Dziekanski, where Mr. Dziekanski was tasered and subdued by Mr. Robinson and others, resulting in Mr. Dziekanski’s death.
Given the circumstances, I can certainly understand and empathize with the public’s (and Mr. Mulgew’s) cry for a harsher sentence for Mr. Robinson’s offence. However, the sentencing judge, based on my reading of the decision, was not out of line. To provide more context, I’ve tried to show why her sentence is supportable in law.
First, sentencing must consider the various principles outlined in the Code. The Criminal Code states that the the purpose of sentencing is to: a) denounce unlawful conduct; b) deter the offender and others; c) separate the offender from society if necessary; d) assist in rehabilitation of offenders; e) provide reparations for harm done; and f) promote a sense of responsibility. In Justice Dillon’s decision, she outlines all the relevant aggravating factors that Mr. Mulgrew outlined and mitigating factors as well (e.g. alcohol dependency, suffers from PTSD, the need for protective custody, etc.). Her reasons are more than just sophistry, but an attempt to balance the various and sometimes conflicting sentencing principles.
The mitigating factors favour a conditional sentence, as opposed to a jail sentence. By law they must be considered. Judges in these situations cannot simply deliver a punishing sentence that the community is satisfied with. The sentence must also consider the individual’s rights. Where the offender’s conduct provokes a particularly emotional reaction, judges will necessarily make unpopular decisions to strikes what they believe to be the right balance.
Second, the starting point in sentencing is not to look at the harshest sentence (10 years). Instead, the general principle is that similar offences are to be punished by similar sentences (s. 718.2(b) of the Code). The sentence provided appears to be supported by case law. Justice Dillon’s decision references R v. Dosanjh, where an officer advised a family member to lie to the police. That officer was sentenced to a conditional sentence for a period of 3 months. Justice Dillon felt that the conduct of Mr. Robinson was worse and accordingly gave Mr. Robinson a sentence that was harsher–12 months. Mr. Mulgrew appears to be distressed that pot growers are being jailed while officers can obstruct justice without the same penalty. The point is well taken. But, judges are to look to similar offences for guidance and Justice Dillon appears to have done exactly this. If the sentences are too light then that requires legislative change, rather than a judge ignoring case precedent.
Third, we must remember what exactly it is that Mr. Robinson is being sentenced for. The conditional sentence order (or house arrest) was not for a “fatal crash.” He is not being sentenced for drunk driving nor for causing the death of the motorist. He can’t be because Mr. Robinson has not been proven to have criminally caused the death of the motorist. I think the sentence seems lenient because we are all assuming he was criminally responsible. But what if he wasn’t? What if it was truly an accident and he was driving with a blood-alcohol content of 0.05? He is entitled to the presumption of innocence (until proven otherwise). Does he deserve to go to jail for 10 years because he lied about his drinking? He is being sentenced for lying and/or misleading the police about how much he drank that day. This legal distinction is important because under the Code, the sentence must be the least restrictive (s. 718.(d) of the Code) and proportionate sentence (s. 718.1 of the Code).
Also, as much as we may want to, we must remember that we don’t sentence a person for merely being of questionable character, or for charges which have not been proven in court beyond a reasonable doubt. Yes, Mr. Robinson played a role in the death of Mr. Dziekanski. But, he is not being sentenced for the death or the tasering of Mr. Dziekanski. And if he is found guilty of perjury, he will be sentenced for it. If we consider everything, it’s easy to see why one may feel insulted by the sentence. But, we have to keep these separate incidents separate.
Finally, Mr. Mulgrew states that Mr. Robinson is not victim of systemic racism. I don’t know if Mr. Robinson has personally suffered racism. What I do know is that prisons are disproportionately populated with Aboriginals. The Gladue principle (under s. 718.2(e) of the Code) explicitly requires sentencing judges to consider sentences other than imprisonment for Aboriginal offenders. The purpose of this is to counteract the systemic racism that Aboriginal people experience personally and also collectively. It is a national crisis that has been recognized by the Supreme Court of Canada (R v. Gladue), and not a just loophole. I don’t claim to know the experience of Aboriginal people or the upbringing of Mr. Robinson. My point is, the over-imprisonment of Aboriginal people is a valid factor that the judge took into consideration.
Note: This was not meant to be a comprehensive summary of the decision–for the full decision, click on the above link.
I hope the above provides a fuller context under which one can assess the sentence of Mr. Robinson. I am not saying that the sentence was too lenient, nor am I saying that it was too harsh. I am in no way condoning or excusing what he did. Clearly our community, including myself, feels betrayed by the actions of Mr. Robinson, an officer placed in a position of trust who took advantage of it. Would I have liked to see Mr. Robinson receive a jail sentence? Yes. But, that doesn’t mean that the conditional sentence Mr. Robinson receive was so out of line as to be incapable of being supported by our laws as it stood on the day of his sentencing. Don’t forget, it was a sentence that was still within the range suggested by the Crown prosecutor.
What do you think? Share your thoughts!
Disclaimer: The content of this article is not legal advice and should not be construed as legal advice. If you have a legal matter/problem, please contact a lawyer in order to obtain independent legal advice.