Sam Humphrey

Sentencing decision following convictions for sexual assault and sexual interference arising from non-consensual intercourse with a 15-year-old complainant.

The court held that denunciation and deterrence were the primary sentencing objectives under ss. 718.01 and 718.2 of the Criminal Code, and relied on recent appellate guidance emphasizing higher penitentiary terms for sexual offences against children.

A COVID-19-based sentence reduction was refused because any reduction would be arbitrary and would undermine proportionality.

The court imposed a 48-month penitentiary sentence on the sexual interference count, credited 669 days for pre-trial custody plus 106 days for lockdown conditions, stayed the sexual assault count under Kienapple, and made most of the requested ancillary orders except a s. 161 order.

The offender requested an earlier hearing date for a pending dangerous offender application, arguing the only remaining issue was credit for pre-sentence custody.

The court initially agreed to proceed by teleconference.

However, after reviewing the sentencing briefs, the Crown requested to cross-examine the offender and call institutional evidence regarding Covid-19 measures, prompting the defence to also request to call evidence.

The court concluded the matter was not capable of being heard by teleconference and adjourned the application to its previously scheduled return date.

The Crown applied for a dangerous offender assessment under s. 752.1(1) of the Criminal Code following the offender's convictions for multiple firearms and violence offences, including attempt to commit murder.

The court reviewed the offender's criminal history, which included a pattern of persistent aggressive behaviour, and found reasonable grounds to believe he might be found to be a dangerous offender.

The application for an assessment was granted.

The Crown appealed the accused's acquittal on a charge of operating a motor vehicle with a blood alcohol concentration over 80.

The trial judge had excluded the breath evidence under s. 24(2) of the Charter after finding a s. 8 breach because the arresting officer failed to follow mandatory procedures for operating the approved screening device, thereby lacking reasonable and probable grounds for the arrest.

The Superior Court dismissed the appeal, finding no error in the trial judge's conclusion that the objective basis for the officer's belief was undermined by the failure to follow imperative instructions.

In a post-verdict sentencing ruling in a sexual assault prosecution, the accused sought a stay of one count and orders for a psychiatric assessment and sexual behaviour testing.

The court held that the impugned count, as presented to the jury on consent, fell within the statutory authorization for adding a charge with the accused's consent and refused the stay.

The court further found there was an adequate basis to order a psychiatric report concerning the accused's mental health and to direct sexual behaviour testing, including phallometric testing, as relevant to the determination of a fit sentence and appropriate ancillary orders.

The stay request was dismissed, and both assessment requests were granted.