Court of Appeal for Ontario

Date: 2024-04-03 Docket: COA-23-CR-0036

Judges: Gillese, Coroza and Sossin JJ.A.

Between:

His Majesty the King Respondent

and

Robert Husband Appellant

Counsel: Richard Litkowski, for the appellant Andrew Cappell, for the respondent

Heard: March 18, 2024

On appeal from the convictions entered by Justice Michael K. McKelvey of the Superior Court of Justice on June 6, 2022, with reasons reported at 2022 ONSC 3366, and from the sentence imposed on September 15, 2022, with reasons reported at 2022 ONSC 5223.

REASONS FOR DECISION

OVERVIEW

[1] Following a trial by judge alone, Robert Husband (“the appellant”) was convicted of discharge of a restricted firearm while being reckless to the safety of others, possession of a loaded restricted firearm, and possession of a firearm while subject to a weapons prohibition. There was no dispute that the appellant suffered from mental illness. He applied for a pre-trial stay of proceedings based on breaches of his Charter rights. He represented himself at the application, trial, and sentencing after discharging his counsel at the outset of the proceedings. The trial judge found the appellant’s rights had been violated in three ways: the police breached his s. 8 rights by an unjustified and improperly conducted strip search after the appellant’s arrest; correctional authorities violated the appellant’s s. 7 rights by using excessive force following the appellant’s suicide attempt in his prison cell; and, the appellant was kept in segregation-like conditions for a period of 232 days contrary to s. 12. However, the trial judge concluded that this was not one of the “clearest of cases” that required a stay of proceedings. Instead, he found that an alternative remedy was available: taking the Charter breaches into account in sentencing, if the appellant was convicted of any of the charges he was facing.

[2] After convicting the appellant of the three counts set out above, the trial judge imposed a global sentence of 8.5 years, reduced by 18 months for the combined effect of Duncan credit[^1], Gladue factors, and Charter breaches. In the result, the trial judge imposed a sentence of 7 years’ imprisonment less 1608 days’ Summers credit for an effective sentence of 2.6 years remaining to be served.

[3] The appellant appeals his convictions and seeks leave to appeal his sentence. He submits that the trial judge erred in refusing to grant a stay of proceedings, and in the alternative, the trial judge failed to provide sufficient reasons explaining the sentence reduction on the basis of the Charter violations.[^2]

FACTS

[4] On the morning of October 11, 2019, the appellant left the motel where he was staying in Richmond Hill with a loaded pistol he was not licensed to own. He was, and remains, subject to two lifetime weapons prohibition orders. The appellant stated that he injected a solution of cocaine and water using a syringe in a nearby wooded area, then fell asleep. When he awoke, he stated he was confused and afraid. He said he heard voices but could not understand what these voices were saying. The trial judge accepted that the appellant had a very scant memory of the ensuing events.

[5] A witness observed the appellant attempting to unlock vehicles in a nearby parking lot before smashing the window of a black SUV and entering the vehicle. Witnesses subsequently heard consecutive gunshots come from the SUV. The appellant testified at trial that he was extremely intoxicated at the time of the gunshots and indicated he was experiencing delusions, including hearing voices. The appellant sat in the driver’s seat and shot the gun out the window, but testified that he did not recall what he was shooting at. The appellant left the gun in the car along with an envelope of cash and a prescription pill bottle with his name on it. Witnesses saw the appellant leave the SUV and continue trying to enter other vehicles.

[6] Police responded to a call regarding the discharge of a firearm. When police confronted the appellant, he held his hands out as though he had a gun and pretended to fire it. However, police could see that he was holding only cash in his hands. He then fell backward onto the ground and was arrested.

ANALYSIS

(i) Conviction Appeal

[7] The appellant argues the trial judge made three errors in refusing to grant a stay: first, he gave too much weight to the seriousness of the charges the appellant faced; second, he failed to give proper weight to the seriousness of the Charter violations as they related to the appellant’s physical and psychological integrity; and third, he discounted the cumulative effect of a “pattern of violations” on the integrity of the justice system. The appellant seeks to have the convictions set aside and a stay of proceedings entered.

[8] A stay of proceedings is a discretionary remedy. The standard of review we must apply is well established. Appellate intervention is only required where a trial judge misdirects themselves in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice”: see R. v. Babos 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509; and R. v. Gowdy, 2016 ONCA 989, 135 O.R. (3d) 371, at para. 65.

[9] All three arguments made by the appellant can be distilled into the overarching submission that the trial judge incorrectly applied the relevant legal principles in determining that a stay was not warranted in the circumstances of this case. We reject that submission and see no basis to interfere with the trial judge’s decision to dismiss the application for a stay of proceedings.

[10] In our view, the trial judge provided cogent and comprehensive reasons for refusing to grant a stay of proceedings. He noted that a stay of proceedings is the most drastic remedy a court can order because it permanently halts the prosecution of an accused. He also correctly stated, and carefully considered, the applicable test for a stay from Babos, at para. 32:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.

[11] The trial judge found the first requirement was met. While he found there was no reason to believe state conduct compromised trial fairness, he concluded, relying on Babos, at para. 35, that a case could fall in that category when conduct is “so troublesome that having a trial – even a fair one – will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency.” In short, he found that the focus is on preventing prejudice to the integrity of the justice system and he determined that the state had engaged in conduct that was offensive to fair play and decency.

[12] Under the second requirement, however, the trial judge determined that any prejudice could be adequately remedied by taking the Charter breaches into account at sentencing, if the appellant was convicted.

[13] Although not required, the trial judge went on to the third and final requirement. He noted that the offences in question were serious and that the Charter breaches were attenuated. First, although he found that the manner of search was “unacceptable”, he concluded that the decision to investigate whether the appellant was injured, as he claimed to be, was reasonable. He therefore found that the strip search was “not an egregious violation” of the appellant’s Charter rights. Second, with respect to the issue of excessive force, the trial judge noted that the appellant did not sustain any permanent injuries and that the correctional authorities were dealing with a highly emotional and panicked person when the assault took place. Finally, while the trial judge also found the appellant’s s. 12 rights were breached through the excessive use of segregation, he reasoned that the appellant’s time in segregation was largely concentrated in 2019. Since that time, the Central East Correction Centre had minimized or eliminated the use of segregation and introduced new programs for inmates. He also found it significant that the appellant had been given the opportunity to leave the unit where he was regularly subject to segregation, but declined to do so.

[14] In sum, considering the Charter violations cumulatively, the trial judge was not persuaded that this was one of those “clearest of cases” demanding a stay of proceedings. Rather, society’s interests in a trial on the merits prevailed. However, if convicted, the trial judge stated the Charter breaches would be taken into account at sentencing. We see no basis to interfere with this decision and we therefore dismiss the appeal from conviction.

(ii) Sentence Appeal

[15] In the alternative, the appellant submits that the trial judge “failed to deliver on his promise” to properly account for the Charter breaches at sentencing. He contends that the trial judge did not provide sufficient reasons explaining the sentence reduction based on Charter breaches. He requests that leave to appeal the sentence to be granted and that the sentence be reduced to time served.[^3]

[16] It is uncontroversial that trial judges are obliged, including when sentencing offenders, to provide reasons that explain what they have decided and why they have decided that way. The reasons must disclose the pathway the trial judge took to reach their decision and must enable the unsuccessful party to discern if any errors have occurred, so that they can meaningfully exercise their right to appeal: see R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79.

[17] During the sentencing proceedings, the trial Crown requested a total sentence of 12 years’ imprisonment with a net sentence of 50 months to be served after 42 months’ cumulative credit was given for Charter violations, Gladue considerations and Duncan credit, and 52 months’ credit for pre-sentence custody. For his part, the appellant argued that a global sentence of 6.5 years imprisonment was appropriate, subject to deductions.

[18] The trial judge imposed a global sentence of 8.5 years’ imprisonment. When it came time to account for the Charter breaches, the trial judge said the following:

[49] Finally, I have considered the three Charter breaches as outlined in my Reasons dated June 6, 2022. While these breaches were not sufficiently egregious to justify a stay of the proceedings, all three of the breaches were significant and justify a reduction of the sentence in accordance with s. 24(1) of the Charter.

[50] Having considered the Charter breaches, the Duncan credit and taking into account the Gladue considerations, I have concluded that Mr. Husband’s overall sentence should be reduced by a further 18 months. [Emphasis added.]

[19] In contrast to his reasons for refusing a stay, the trial judge’s reasons for the sentence reduction because of the Charter breaches are conclusory and impervious to appellate review. The trial judge’s reasons offer nothing beyond the fact that he was granting an 18-month cumulative reduction for three serious Charter breaches, Gladue factors and Duncan credit. The reasons do not explain how the trial judge arrived at the sentencing reduction for the Charter breaches, nor do the reasons provide any explanation of how the 18-month reduction addressed the significant misconduct that resulted in Charter breaches as described by the trial judge. We also observe that the trial Crown suggested that an overall 42-month reduction was warranted and the appellant was self-represented throughout the proceedings. In the context of the submissions that were made before him and the live issues that were raised during the proceedings, the reasons of the trial judge do not disclose the pathway he took to determine what was a fit and appropriate sentence, having regard to his earlier commitment to “respond” to the Charter breaches during sentencing instead of granting a stay. The reasons are insufficient and we agree with the appellant’s submission that the appropriate remedy is to vary the sentence to time served.

DISPOSITION

[20] For these reasons, the appeal from the conviction is dismissed. Leave to appeal sentence is granted, the appeal is allowed, and the sentence is reduced to time served. All other aspects of the sentence remain in force.

“E.E. Gillese J.A.”

“S. Coroza J.A.”

“L. Sossin J.A.”

Footnotes

[^1]: A “Duncan” credit is given on account of particularly difficult and punitive pre-sentence custody conditions: see R. v. Duncan, 2016 ONCA 754. However, as the trial judge noted, it is to be treated as a factor to be taken into account in determining an appropriate sentence, rather than as a simple deduction: see R. v. Marshall, 2021 ONCA 344.

[^2]: During the oral hearing of the appeal, counsel for the appellant submitted that the trial judge did not explain why he reduced the sentence by substantially less than was recommended by the trial Crown in respect of the Charter violations. Since the issue was not addressed in his factum we invited further written submissions from both parties. We received those written submissions on March 25 and March 26, 2024.

[^3]: The appellant was sentenced to 2.6 years’ remaining on September 15, 2022. He has been in custody serving that sentence since that date.