Court File and Parties

Date: February 14, 2020

Information Nos.: 4817-998-18-75006180-00, 4817-998-18-75005957-00

Ontario Court of Justice

Her Majesty the Queen v. Marty T. Behm

Reasons for Sentence

Before the Honourable Justice J. North on February 14, 2020 at Toronto, Ontario

Appearances

B. McCallum – Provincial Crown

R. Parker – Counsel for Marty Behm

Reasons for Sentence

NORTH, J. (Orally):

Introduction

On February 6, 2020 Marty Behm pleaded guilty to one count of assault causing bodily harm and one count of failing to comply with a term of a recognizance. He is now before the Court for sentencing.

There are two fundamental issues:

1. What is the appropriate sentence?

2. How much credit should Mr. Behm receive for the time he spent in pre-sentence custody?

The Offences

Mr. Behm and the complainant knew each other. Around Halloween 2018 Mr. Behm assaulted the complainant by striking her in the face. This caused bruising and swelling around the eyes of the complainant. For a time, the complainant was barely able to open her eyes. The complainant's community support workers noticed these injuries. She disclosed to them that Mr. Behm had caused the injuries and the complainant did not want to report the matter to the police. Mr. Behm was arrested by police for assaulting the complainant. He was released from custody on December 9, 2018. One of the conditions of his release order required Mr. Behm not to contact the complainant and not to be within two hundred metres of anywhere she was known to be.

On December 17, 2018 Mr. Behm approached the complainant and attempted to speak with her about the charge he was facing. The complainant reported this interaction to the police. On December 19, 2018 Mr. Behm turned himself in to the police.

Position of the Parties

Crown counsel takes the position that the appropriate global sentence is 2 years less a day imprisonment less credit on a 1.5 to 1 basis for pre-sentence custody. As of February 14, Mr. Behm has served 305 real days of pre-sentence custody, which on a 1.5 to 1 basis equals approximately 457 days or approximately 15 months.

Crown counsel agrees that Mr. Behm should receive some additional credit for the days he spent in lockdown while he was at the Toronto South Detention Centre. The parties disagree on the credit that should be given for what they have described as "exceptional lockdown time". Crown counsel argues that Mr. Behm is entitled to half a day of credit for each of the 107 days of exceptional lockdown time. Based on the Crown's position, Mr. Behm should be required to serve another 7 and one-half months. Crown counsel submitted that the Court should also impose a term of probation for 3 years. Finally, Crown counsel requests a DNA order, a weapons prohibition order under s.109 of the Criminal Code and an order pursuant to s.743 of the Criminal Code requiring Mr. Behm not to communicate with the complainant while he is in custody.

Defence counsel argues that the appropriate global sentence is between 12 and 18-months imprisonment, less the time Mr. Behm spent in pre-trial custody and less the enhanced credit for harsh conditions at the Toronto South Detention Centre. Defence counsel takes the position that the Court should grant 1 and a half days of credit for each of the 107 days of exceptional lockdown time. It is the position of the defence that Mr. Behm has already served the custodial part of his sentence. Defence counsel takes the position that there should be a 2-year period of probation. The defence is not opposed to the ancillary orders requested by the Crown.

What is the Appropriate Sentence?

Legal Principles

Sentencing is first and foremost an individualized exercise. Sentencing judges retain the flexibility and discretion that's needed to do justice in individual cases. That being said, the discretion granted to sentencing judges is not unlimited. The sentencing judge must apply both the law enacted by Parliament and pay close attention to the guidance provided by the Court of Appeal. A sentencing judge must impose a sentence that reflects the fundamental purpose of sentencing and the relevant sentencing objectives and principles that are set out in the Criminal Code.

In short, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. To achieve this overarching purpose, courts must impose just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

The relevance and weight to be given to these objectives will vary depending on the nature of the crime and the circumstances of the offender. The objectives of denunciation and deterrence will usually dominate the other objectives identified in s.718 where an offence is serious. The offences committed by Mr. Behm were serious. Given the circumstances of these offences, denunciation and deterrence are particularly important sentencing objectives in this case.

Turning to the principles of sentencing. The fundamental principle of sentencing is proportionality. Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. While proportionality is the fundamental principle of sentencing, other principles must also be considered when determining the appropriate sentence. In this case a number of sentencing principles contained in s.718.2 are implicated including:

• a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

• a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

• an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

Range of Sentence

In my view, the range of sentence for assault causing bodily harm by an offender with a criminal record which resulted in harm to a victim of a similar nature to this case is 6 months to 4 years. See R. v. Goulding, 2017 ONSC 4376 at para 27.

The Complainant

The complainant is a 66-year-old woman who lives in subsidized housing. She has significant mobility issues. She uses a walker and has trouble getting up from a seated position due to hip pain. She lives on her own but gets support to complete daily living tasks. She is unable to read or write. According to a psychologist's report, the complainant has difficulty articulating thoughts. She has a very limited vocabulary. The complainant could not tell the psychologist how old she was or where she was born. She did not know what year it was. She cannot recognize written numbers. She can only count to ten using her fingers. She cannot tell time. The complainant has a full scale IQ of 52, which is in the extremely low range. Ninety-nine-point nine percent of the population have a higher IQ than the complainant. The psychologist administered another standardized test which measures overall adaptive functioning. Ninety-nine-point nine percent of the population would score higher on this test than the complainant. Clearly the complainant is a vulnerable person. That would have been obvious to Mr. Behm. It is an aggravating factor that Mr. Behm assaulted a person who was particularly vulnerable because of her personal circumstances.

The assault had a significant impact on the complainant's physical and psychological health. This is an aggravating factor. For a period of time the complainant was barely able to open her eyes. As a result of this assault she continues to have trouble seeing. In her Victim Impact Statement, she stated that her ability to cook has been impacted because she can't see. She can't see the buttons on her television remote. She continues to be afraid. She does not want to go outside by herself. Following this assault, she has had trouble sleeping. She has been having nightmares.

It is also an aggravating factor that only days after Mr. Behm was released from custody, he flagrantly breached a condition of his release order.

The Offender

Mr. Behm is a 51-year-old man. He has a lengthy criminal record. His first conviction was in 1988. He has been convicted of approximately twenty-five offences. He has been convicted of nine offences involving violating court orders. He has been convicted of simple possession of a controlled substance on three occasions. He has also been convicted of assault with a weapon, uttering threats and break and enter. The sentences for most of these offences involved fines or short periods of incarceration.

Mr. Behm has had a difficult life. Determining what constitutes a fit sentence requires "an examination of the specific circumstances of both the offender and the offence so that the punishment fits the crime". See R. v. Proulx, 2000 SCC 5 at para 82. That exercise requires a court to consider the life experiences of the person standing before them. However, factors that mitigate an offender's personal responsibility, "cannot justify a disposition that unduly minimizes the seriousness of the crime committed". See R. v. Hamilton and Mason at para 93.

As a teenager, Mr. Behm had serious issues with his stepfather. Mr. Behm left school in grade 10. He has six children but he lost access to them in the early 1990's. Mr. Behm is HIV positive and for years he has faced other significant health challenges. He has been diagnosed with post-traumatic stress disorder. He has struggled with substance abuse much of his life.

In approximately 1991 he became addicted to cocaine and went into a downward spiral. It became difficult for him to keep a job.

I accept defence counsel's submissions that Mr. Behm's criminal record is largely the product of his addiction and anger management issues. Where the commission of an offence is directly connected to a mental health issue or addiction the moral blameworthiness of an offender may be significantly reduced. See R. v. Sharma, 2018 ONSC 1141, at paras 167 to 169. However, health or addiction issues "cannot generally be used to avoid what is otherwise a fit and proper sentence". See R. v. Heron, 2017 ONCA 441, at para 25.

Prior to his arrest, Mr. Behm was employed as a harm reduction worker. I understand that this job will be waiting for him when he is released from custody.

The fact that Mr. Behm pleaded guilty is a mitigating factor. There were triable issues in this case. It is also a mitigating factor that by pleading guilty the complainant was not required to testify at trial which would have been a difficult experience for her.

Having regard to the seriousness of these offences and Mr. Behm's moral blameworthiness together with the aggravating and mitigating factors and all of the other relevant considerations involved in this case I have concluded that Mr. Behm should be sentenced to 21 months imprisonment to be followed by 3 years of probation.

Credit for Pre-Sentence Custody

As I've already indicated, there is no dispute that Mr. Behm should receive the usual 1.5 to 1 credit for the time he spent in pre-sentence custody.

Mr. Behm was at the Toronto South Detention Centre during his pre-sentence custody. When not subject to a lockdown inmates at the Toronto South Detention Centre are in their cells from 9:30 p.m. until 8:00 a.m. While Mr. Behm was at the Toronto South Detention Centre, Mr. Behm's unit was locked down for 133 days. Of those 133 days there were seventy-one times when he was locked down for more than three and a half hours before 9:30 p.m. or when he was locked down for more than ten hours during the day. There were occasions where a lockdown occurred consecutively for more than three days in a row. There were thirty-six days of extended consecutive lockdowns.

During a full day lockdown, two to eight inmates in a unit are let out of their cells at a time for thirty minutes to access phones, showers and sometimes the yard. There are four phones and two showers in a unit. Sometimes only two of the phones are operational. According to the Agreed Statement of Facts, "inmates with the supervision of TDSC staff choose amongst themselves who will access the shower and phones".

In this case, Crown counsel and defence counsel agree that 107 days should be calculated as exceptional lockdown time. It was also agreed that staff shortages were responsible for 106 of those 107 days.

When Mr. Behm arrived at the Toronto South Detention Centre, he advised the institutional staff that he was on a special high calorie diet. Given his medical issues, without the additional calories Mr. Behm loses weight. He was supposed to receive a high calorie drink called Ensure. He did not receive that for a period of time. He repeatedly made this request in writing. Further, he was supposed to receive an anti-nausea drug. It also took a period of time before the institution responded to his repeated requests for this drug. During this period, he rapidly lost weight and experienced other side effects. On April 22nd he was prescribed a high calorie diet but it took several weeks before he received it and, in the meantime, he lost a lot of weight. Since that time, and once he was placed on the high calorie diet and received his anti-nausea drug, he regained that weight. In his affidavit Mr. Behm stated that during the lockdown there was a lot of violence over access to the phones and showers. Mr. Behm said that access to the phones and showers was to a certain extent determined by an informal inmate hierarchy. As a man in his fifties with significant health problems he was far from the top of this hierarchy.

Mr. Behm testified that there were two scabies outbreaks while he was at the Toronto South Detention Centre. He said that as a result of the scabies outbreak the institution was under a lockdown. In his affidavit he stated that he felt "dirty and awful and unclean all of the time".

Mr. Behm described what he felt like during the lockdowns in his affidavit. He stated as follows:

"I am not very good with words so it is hard to describe what it is like to be locked down. It is claustrophobic. You start to feel crazy and like everyone has forgotten about you. It makes me feel very stressed and trapped. It causes more fights and tension among the inmates, which is also stressful. You lose contact with your friends and with your lawyer and you lose hope. I have been in some tough situations in my life but never anything like this. If people could see what it was like they would not believe that it is Canada."

This part of his evidence was not meaningfully challenged. I accept this part of Mr. Behm's evidence regarding the impact that the lockdowns had on him.

Mr. Behm also complained that in April 2019 he noticed a growth on his shoulder and it caused him a lot of pain. He requested medical attention but he did not receive it immediately. He said that as time went by, he experienced numbness in his arm and hand and he continued to request medical assistance. On April 24th he had an ultrasound and an x-ray on his shoulder. In June or July of 2019, he started to receive physiotherapy but these sessions were interrupted because of a scabies outbreak. Mr. Behm said that his shoulder pain continued to get worse. In August of 2019 he was in an accident that aggravated this injury. On January 20, 2020 he received a cortisone shot which has helped with his pain.

Harsh Conditions of Pre-Sentence Custody

Turning to the law regarding harsh conditions of pre-sentence custody.

In R. v. Duncan, 2016 ONCA 754, the Court of Appeal concluded that in appropriate circumstances particularly harsh pre-sentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s.719(3.1). The Court went on to say that in considering whether any enhanced credit should be given a Court will consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused.

In the last four years, there have been a number of decisions that have considered Duncan. Many of these cases are reviewed in R. v. Persad, 2020 ONSC 188, R. v. Oskem, 2019 ONSC 6283, R. v. Jama, 2018 ONSC 1252, R. v. Fermah, 2019 ONSC 3597 and R. v. Tewolde, 2020 ONSC 532.

In some cases, courts have not reduced a sentence based on an argument that the conditions of pre-sentence custody were particularly harsh. In other cases, courts have given a specific credit for pre-sentence custody over the 1.5 credit allowed by s.719(3.1), see R. v. Persad. In such cases, courts have concluded that there is no mathematical formula for determining the amount of enhanced credit for harsh pre-sentence incarceration conditions. Finally, in other cases, the harsh conditions of pre-sentence custody have been taken into account when determining the fitness of a sentence as opposed to a specific credit for pre-sentence custody. See R. v. Tewolde, R. v. Cunningham, 2019 ONCJ 559 and R. v. Hudson, 2019 ONCJ 608.

While courts have adopted different approaches to how to deal with the impact of harsh pre-sentence conditions when sentencing an offender, there does not seem to be significant dispute about at least four things:

(1) There is no blanket Toronto South Detention Centre discount in sentencing. There is a specific burden on an offender who seeks to establish that his sentence should be reduced as a result of harsh pre-sentence conditions.

(2) As a result of staff shortages, there are often lockdowns at the Toronto South Detention Centre. This has been a long-standing problem.

(3) Courts have repeatedly criticized the conditions at the Toronto South Detention Centre.

(4) The Ministry of the Solicitor General is aware of the judicial criticism of these conditions.

Mr. Behm has satisfied me that he experienced harsh conditions during his time at the Toronto South Detention Centre and that those conditions had a real impact on him.

These conditions are troubling and unacceptable. The reasons for the lockdowns are troubling and unacceptable. The failure of the Ministry of the Solicitor General to deal with the inhumane conditions at the Toronto South Detention Centre is troubling and unacceptable.

I agree with Justice Goldstein's conclusion in R. v. Shaikh, 2020 ONSC 438, regarding the question of whether anyone has deliberately chosen to make prison conditions at the Toronto South Detention Centre harsher. At paragraph 54 Justice Goldstein stated that:

At the end of the day, however, it doesn't matter whether there has been deliberate misconduct or an unwieldy system that cannot cope. What matters is that the problem must be alleviated.

I agree with Justice Schreck's conclusion in Persad, at paragraphs 32 and 33, that conditions at the Toronto South Detention Centre undermine the penal objectives of sentencing.

I also agree with Justice Schreck's conclusion in Persad, at paragraphs 36 and 37, that in some cases it will be appropriate for a court to grant credit in excess of one half to one day for each day spent in lockdown. In my view, this is such a case.

However, based on this record I am not prepared to conclude that the medical attention that Mr. Behm received for his shoulder injury was sub-standard or unreasonable.

I have concluded that Mr. Behm should be given enhanced credit of 5 months for harsh pre-sentence incarceration conditions. If I had taken the harsh pre-sentence conditions into account when assessing the fitness of the sentence instead of considering it as a credit over and above that allowed by s.719(3.1) I would have reduced his sentence by 5 months.

Conclusion

To summarize, Mr. Behm will be sentenced to 21 months imprisonment on the charge of assault causing bodily harm. He will be sentenced to 4 months imprisonment for the breach of recognizance charge which is to be served concurrently with his other sentence.

As of February 14, 2020 Mr. Behm has accumulated 305 days of pre-sentence custody attributable to these charges. He will receive the usual credit of one and a half days for each of the 305 days he spent in pre-sentence custody which equals approximately 15 months. After the credit for pre-sentence custody is taken into account the time left to serve is 6 months, and as I have concluded that Mr. Behm should receive a further 5 months credit for the harsh conditions that he faced while he was at the Toronto South Detention Centre, Mr. Behm must serve one additional month in custody.

Probation

Following the completion of the custodial portion of this sentence Mr. Behm will be subject to a probation order for 3 years. The conditions of the probation order are as follows:

1. He must keep the peace and be of good behaviour.

2. He must appear before the Court when required to do so by the Court.

3. He must notify the Court or his probation officer in advance of any change of name or address and promptly notify the Court or probation officer of any change of employment or occupation.

4. He must not communicate or contact the complainant in any way directly or indirectly by physical, electronic or other means.

If Mr. Behm encounters the complainant in the community, he must immediately remove himself from her presence without word or gesture.

5. Mr. Behm must not be within fifty feet of any residence where he knows the complainant to reside.

Ancillary Orders

The following ancillary orders will also be imposed:

1. There will be a prohibition order for 10 years under s.109(2)(a) of the Criminal Code and a prohibition order for life under s.109(2)(b).

2. There will be an order that Mr. Behm provide a sample of a bodily substance for the purpose of forensic DNA analysis. Assault causing bodily harm is a primary designated offence.

3. There will be a non-communication order pursuant to s.743(2.1) of the Criminal Code. Mr. Behm you are not permitted to communicate directly or indirectly with the complainant during the remainder of the custodial period of your sentence.

Mr. Behm you will receive a copy of the probation order. You will be asked to review it. You will have to sign it and by signing it you're acknowledging that you understand the contents. If you fail to comply with the conditions of your probation order you can be arrested, brought back to Court and, if found guilty, subject to potentially further imprisonment. Do you understand all that?

THE WITNESS: Yes, I do, Your Honour.

THE COURT: All right. Thank you very much. Good luck sir.

END OF EXCERPT OF PROCEEDING