R. v. Humphries

COURT FILE NO.: CR-19-4687 DATE: 2019-10-15 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, Appellant AND: Bradley Humphries, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Kevin Kim for the Appellant; Zahra Shariff for the Respondent

HEARD: October 15, 2019

ENDORSEMENT

[1] The Crown appeals under s.813 of the Criminal Code from the conditional sentence of six months imprisonment and three years probation imposed by Colvin J. on March 4, 2019 following a trial and conviction for sexual assault, contrary to s.271 of the Criminal Code.

[2] The victim was nine years old at the time of the offences. She was a friend of the respondent’s daughter. The offences occurred when the victim was at the respondent’s house for sleep-overs. On ten occasions in the summer and autumn of 2016 the respondent fondled the victim’s private parts while she was in bed. On one of these occasions, he fondled her underneath her nightgown.

[3] The respondent was 50 years old at the time of the offences. He was married and had no criminal record. In 1990 he lost one leg and severely injured the other in a motorcycle accident. He stopped work and kept house while his wife worked. They rented out rooms to students to supplement the household income. When the respondent was charged, his marriage ended. He lives with his mother and receives social assistance. He has not had his prosthetic leg replaced since he got it in 1990. He is prone to infection in both legs.

[4] At the time, the Criminal Code provided for a minimum sentence of 90 days imprisonment and a maximum of 18 months on summary conviction. The trial judge ruled correctly that he was bound by the decision of Schreck J. in R. v. Drumonde, 2019 ONSC 1005 insofar as it held that the mandatory minimum sentence was invalid. He then proceeded to apply the principles of sentencing.

[5] The appellant does not challenge the decision in Drumonde or the judge’s decision to follow it.

[6] The appellant submits that the judge proceeded on erroneous principles and imposed a sentence that was manifestly unfit and asks me to substitute a sentence of 12 months imprisonment. The respondent submits that the sentence was in the available range and that in any event it would be contrary to the interest of justice to incarcerate the respondent now, after he has served his entire conditional sentence.

[7] The judge cited R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.). He recognized that adult offenders who prey on innocent children should expect general and specific deterrence and the need to separate offenders from society must take precedence over other recognized objectives of sentencing. He then noted, citing the same case, that trial judges must retain the flexibility needed to do justice in individual cases.

[8] The judge recognized the seriousness of the offence in general and the serious effect it had had on the victim.

[9] The core of his reasoning was put with concision:

Sentencing is a delicate balance of the offence committed and the offender. So, I must consider Mr Humphries. I must consider his prospects for the future, how to rehabilitate him and how to protect society. Obviously, he will ultimately be in society. He will be in the community. Under our law, that is inevitable.

[10] The judge then noted the extrajudicial consequences of the offence: the respondent had lost his wife and income and was limited in his access to his daughter.

[11] He proceeded to what appears to have been decisive as between prison and house arrest:

His health and physical handicap are a serious issue that I must consider. Our detention centres have a woeful history in dealing with medical issues.

[12] The judge cited as examples R. v. Capay, [2019] ONSC 1025 and one of his own cases, R. v. Boyle, in which the relevant events took place in 2011.

[13] In Capay, Fregeau J. stayed a murder charge after a mentally ill prisoner was detained in continuous segregation for four and a half years, during which time his mental health deteriorated. There is no comparison between what Capay suffered and what the respondent was facing.

[14] In Boyle, the judge took the prisoner’s health more seriously than did the correctional authorities, and subsequent medical events proved the judge right. He had reason to be frustrated with the Niagara Detention Centre in that case.

[15] The judge was right to consider whether the sentence to be imposed would have greater impact on the offender than it would on other offenders because of his health issues: R. v. Polanco, 2019 ONSC 3073, paragraph 43. He was not, however, justified in giving that factor as much weight as he did on the evidence. The respondent was suffering from chronic sequelae of a serious injury. He had mobility issues and was prone to infection. He did not need immediate medical attention. There was no basis for the judge’s assumption that the correctional authorities would not allow the respondent to use his prosthesis. Fresh evidence admitted on consent in the form of an affidavit from the deputy superintendent of the detention centre suggests that it is not in fact likely that the respondent’s prosthesis would be taken from him.

[16] Nor was there any basis beyond speculation that the respondent’s health would suffer if he were to be incarcerated. The facts are a long way from those in R. v. C.D., 2012 ONCA 696, on which the respondent relies.

[17] The consideration that sexual offenders face a tougher time in prison than some others was not entitled to any significant weight.

[18] The judge did not give precedence to deterrence and separation as s. 718.1 of the Criminal Code and the relevant case law require. He allowed the fact that the respondent has a prosthetic leg and gets about with a cane to trump all else. This led him to impose a sentence that was manifestly inadequate. There was nothing about this case that would have justified a conditional sentence for multiple occasions of genital fondling of a young child who was at the time in the respondent’s house, under his supervision.

[19] The respondent argues that he should not be incarcerated now on the principle enunciated by the Court of Appeal in R. v. Song, 2009 ONCA 896. He has served the conditional imprisonment portion of his sentence. Under the provisions of the conditional sentence order the respondent was required to remain in his residence for three months, subject to generous exceptions. The remaining three months’ conditions resembled the conditions of probation. I doubt whether the sentence had much impact on the offender’s daily life even during the period of house arrest. Indeed, one of the judge’s considerations was that the respondent has limited mobility. In other words, he does not get out much anyway. The respondent is still on probation. The appeal was brought as quickly as could reasonably be expected, which was not the case in Song. It would not be in the public interest to allow the respondent to escape all meaningful punishment. But I shall reduce the period of incarceration somewhat from what might have been imposed and trial and I shall also reduce the period of probation.

[20] The appeal is allowed, and the sentence is varied to six months imprisonment starting today followed by 18 months probation. The probation will be on the terms given by the trial judge. The ancillary orders stand.

J.A. Ramsay J.

Date: 2019-10-15