Court File and Parties

Court File No.: CR-1574/16 Date: 2017-03-23

Ontario Superior Court of Justice

Between:

Her Majesty The Queen A. Mountjoy, for the Crown

- and -

Oswald Poyser F. Lyons, for the defence

Heard: March 10, 2017, at Brampton

Reasons for Sentence

André J.

[1] A jury convicted Mr. Oswald Poyser on January 31, 2017 of the offence of uttering threats to Caryn Humphrey between May 1, 2014 and March 13, 2015, contrary to s. 264.1(a) of the Criminal Code (the “Code”). The Crown seeks a suspended sentence while defence counsel submits that a conditional discharge is appropriate. I must now decide, pursuant to s. 718.1 of the Code, what is a proportionate sentence in this case.

Facts

[2] Mr. Poyser and Ms. Humphrey had a tumultuous relationship which ended in April 2015 after Ms. Humphrey gave a statement to the police. She alleged that Mr. Poyser repeatedly assaulted her during the relationship and sent her a number of threatening emails and text messages between May 2014 and March 2015. The jury acquitted Mr. Poyser of three assault-related charges but convicted him of threatening Ms. Humphrey as she had alleged.

Analysis

[3] Section 718.1 states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[4] Section 718.2 sets out a number of principles that a court should consider in determining what is an appropriate sentence in any case.

[5] Section 724 of the Code provides that:

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

(c) either party may cross-examine any witness called by the other party;

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and

(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

Aggravating Factors

[6] In determining the gravity of the offence, I must consider the aggravating factors in this case.

[7] First, the threats occurred within the context of an intimate relationship between Mr. Poyser and Ms. Humphrey. There were periodic breakups between the two during the relationship but they continued to be intimate with each other for a significant period.

[8] Second, the threat was not an isolated incident. During the trial the Crown tendered approximately six text messages and emails allegedly sent by Mr. Poyser to Ms. Humphrey. Some contain threats to kill her. At least one contained a threat to rape her and to “breed” her. The emails and text messages can only be described as demeaning, degrading and threatening.

[9] Defence counsel submits that given that the court is unaware of the jury’s factual finding regarding the number of threats sent by Mr. Poyser, for sentencing purposes, I should only consider one of the threatening emails rather than five or six.

[10] I disagree with this submission for the following reasons. As noted in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, para. 18 “when the factual implications of the jury’s verdict are ambiguous, the sentence judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts”. The court also noted that to rely upon an aggravating factor, the sentencing judge must be convinced of the existence of that fact beyond a reasonable doubt.

[11] In my view, the factual implications of the jury’s verdict are not ambiguous in this case. The Crown tendered six emails and text messages as exhibits in the trial, five of which contained explicit threats. Defence counsel submitted to the jury during his closing address that Ms. Humphrey had fabricated those emails and text messages and that Mr. Poyser had never sent them to her. The jury evidently found as a fact that Mr. Poyser had sent all the offensive messages to Ms. Humphrey. To that extent, the Crown has proven this aggravating factor beyond a reasonable doubt.

[12] While Mr. Poyser does not have a criminal record, he has been found guilty of a criminal offence. On January 9, 2014, Mr. Poyser was found guilty of the offence of Trafficking in Stolen Property. The fact that Mr. Poyser has already been granted a conditional discharge does not automatically disqualify him from receiving another. However, it is a factor in deciding whether or not Mr. Poyser should be granted a conditional discharge in this case.

Mitigating Factors

[13] Mr. Poyser is a 27-year-old father. He completed college and is a small business owner. He is also well respected in the community; a fact which is evidenced by six reference letters of support filed on his behalf.

[14] Additionally, Mr. Poyser has completed five sessions of a counselling program for domestic abuse. He had also complied with the terms of his recognizance for over two years.

Appropriate Range of Sentence

[15] What then, is an appropriate sentence in this case? Section 730 of the Code states that a court may grant an accused who is found guilty of an offence for which there is no minimum sentence, a conditional or absolute discharge, if it is in the accused’s best interests and not contrary to the public interest.

[16] There is no doubt that a conditional discharge is in Mr. Poyser’s best interests. In my view however, it is contrary to the public interest. There were a number of threats over a nine-month period. The words uttered were demeaning and degrading. The threats were uttered to someone with whom Mr. Poyser had an intimate relationship.

[17] Finally, Mr. Poyser has been the beneficiary of a conditional discharge in the past. The mitigating factors are not exceptional to a point that they justify the granting of a conditional discharge in this case.

[18] Accordingly, I suspend the passage of sentence and place Mr. Poyser on probation for one year, subject to the following conditions:

(1) Report to a probation officer and thereafter as required.

(2) Have no weapons in his possession.

(3) Take or continue such counselling which may be recommended by your probation officer and provide proof of completion to your probation officer.

(4) Have no contact, direct or indirectly, with Caryn Humphrey.

(5) Do not attend at Ms. Humphrey’s residence or employment if known to you.

(6) Seek and maintain gainful, employment.

Ancillary Orders

(1) There will be a s. 110 order for 10 years.

André J.

Released: March 23, 2017