Court File and Parties

COURT FILE NO.: CR-20-60000315-0000 DATE: 2020-10-20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAHI LUMLEY

Counsel: David Spence, for the Crown Jennifer Myers, Amicus

HEARD: October 15, 2020

REASONS FOR JUDGMENT ON 90-DAY REVIEW

R.F. GOLDSTEIN J.

[1] On October 15, 2020 Mr. Lumley came before me for a review under s. 525 of the Criminal Code. A s. 525 review, also known as a Myers review, requires that a Superior Court judge enquire and determine whether the detention of an accused person continues to be justified: R. v. Myers, [2019] 2 S.C.R. 105, 2019 SCC 18 at paras. 45-46. The judge must determine whether detention continues to be justified on one or more of the three grounds set out in s. 515(10) of the Criminal Code: first, that detention is necessary to ensure the accused person’s attendance in court; second, that detention is necessary for the protection or safety of the public; or third, that detention is necessary to maintain confidence in the administration of justice.

[2] I determined that Mr. Lumley’s detention continues to be justified on the second ground. I indicated that I would provide more fulsome reasons for ordering that he remains in custody. The following are my reasons.

The Current Charges

[3] Mr. Lumley currently faces four sets of charges:

• First Set – Charges dated September 23, 2019: At 1:18 am, Mr. Lumley was at the Coxwell TTC subway station. He had his pants down and was masturbating. He got on a westbound subway car and continued to masturbate. He left the train at Bloor Station. Police arrested him there. Mr. Lumley was charged with committing an indecent act and several counts of breach of probation. Just over a month earlier, on August 13, 2019, Justice Bovard convicted Mr. Lumley of three counts of committing an indecent act, mischief under $5000, and breach of probation. Justice Bovard suspended the passing of sentence in light of 300 days of pre-sentence custody and placed Mr. Lumley on probation. Those were the probation orders that Mr. Lumley is accused of breaching.

• Second Set – Charge dated October 29, 2019: In 2010 Mr. Lumley was convicted of sexual assault. As a result he was placed on the sex offender registry. Under the Sex Offender Information Registry Act (also known as SOIRA) an offender is required to register with his address and other particulars every year. On October 29, 2019 Mr. Lumley’s registration expired and he did not renew it. He now faces a charge of failing to comply with the requirements of the SOIRA.

• Third Set – Charges Dated November 24, 2019: Mr. Lumley was released on bail on the first set of charges on October 22, 2019. He had been in custody about a month. On November 24, 2019, Mr. Lumley was in the area of 6 Pintail Crescent. That is a residential area. At about 12:30 pm, was standing on the sidewalk. Children were apparently present in the area. Mr. Lumley opened his pants and began masturbating. A resident called the police. Another resident videotaped the incident. Mr. Lumley was arrested and charged with committing an indecent act, with violating Justice Bovard’s probation order, and with violating the terms of his October 22, 2019 release.

• Fourth Set – Charges dated May 20, 2020: Mr. Lumley never had a bail hearing on the third set of charges. On May 5 and 13, 2020, he came before my colleague Justice Bawden on a Myers review in relation to those charges. Justice Bawden considered whether Mr. Lumley’s detention in custody was still justified. He found that Mr. Lumley’s detention was not and ordered him released: R. v. Lumley, 2020 ONSC 3038. Mr. Lumley was released on May 13, 2020. On May 20, 2020, Mr. Lumley went to the park behind Roden Public School at around 4 pm. There were several children playing in the park with their mothers. Mr. Lumley allegedly sat down beside some of the children. One of the mothers observed that Mr. Lumley was masturbating while looking at her own children. Another mother called the police. When the police arrived, they found Mr. Lumley wearing three pairs of pants. Two pairs were pulled down around his thighs. He allegedly gave the police a false name. He was arrested and charged with three indecent act counts associated with the public masturbation around children; again breaching Justice Bovard’s probation order; and breaching his various bail conditions.

[4] On May 27, 2020 Mr. Lumley appeared before Justice Chisvin of the Ontario Court of Justice for a bail hearing on the fourth set of charges. It was a reverse onus bail hearing due to the fact that Mr. Lumley was on bail when he was arrested. Mr. Lumley refused the assistance of duty counsel. He insisted on representing himself. The bail hearing was itself rather perfunctory, with no plan of release presented. Justice Chizvin gave very brief reasons indicating that Mr. Lumley had failed to meet his onus on the secondary ground.

Mr. Lumley’s Background

[5] Mr. Lumley’s criminal record is unenviable. In 2009 he was convicted of possession of a controlled substance. In 2010 he was convicted of sexual assault. Between 2013 and 2016 he accumulated four convictions for failure to comply with bail conditions. In 2019 he was convicted of failure to comply with a bail condition for a fifth time.

[6] Troublingly, in 2019 Mr. Lumley accumulated three convictions for committing an indecent act. They all appear to involve exposing himself and masturbating in public. What is also troubling is that he has been convicted twice for failure to register under the provisions of SOIRA. He currently faces another charge of failing to register under the SOIRA provisions – although Crown counsel very fairly indicated that the Crown may not seek a conviction on that charge. Mr. Lumley may have taken some steps to register after he was released in October 2019.

[7] There is no mystery about the reasons for Mr. Lumley’s troubles with the law. He has significant mental health issues. He has been apprehended and admitted to hospital under the Mental Health Act more than once.

[8] In June 2019, Madam Justice Wong of the Ontario Court of Justice ordered an assessment of Mr. Lumley under s. 21(1) of the Mental Health Act. Dr. Alina Iosif of the Centre For Addiction And Mental Health examined Mr. Lumley and prepared an extensive report. This was her diagnosis:

Mr. Lumley suffers from Antisocial Personality Disorder, Polysubstance Use Disorder, and Substance Induced Psychosis – with a differential diagnosis of Schizoaffective Disorder or Bipolar Affective Disorder. Sexologically, he suffers from Exhibitionism; a diagnosis of Pedophilia is likely.

[9] Dr. Iosif observed:

Phallometric testing was indicative of a pedophilic preference. Mr. Lumley did masturbate repeatedly in places were children and young adolescents were likely to be found, and to see him. Mr. Lumley did not personally admit to such a preference. There is no other available history of inappropriate sexual behavior with children, so this diagnosis cannot be confirmed unequivocally, but given the high sensitivity of the phallometric procedure, it is more likely than not.

In addition, Mr. Lumley has a history of several incidents of exposing himself to others, including the index offences. Although he indicates that this was only in response to social cues from others that they “wanted to see [him]”, that he was not aroused or driven by his victims’ shock and surprise, and that others, including women, had similarly exposed private body parts to him in public, such assertions are hardly credible.

[10] Dr. Iosif’s risk assessment was that Mr. Lumley’s risk of violent and sexual recidivism was moderate-high. That assessment was based on a number of tests as well as an evaluation of Mr. Lumley’s past behaviour.

[11] Dr. Iosif concluded:

Mr. Lumley’s principal criminogenic variables, in my opinion, consist of:

• antisocial personality disorder and moderate psychopathic traits;

• paraphilic sexual preference;

• regular use of substances; and

• lack of skills and/or willingness to sustain employment or education.

[12] In May 2019 Justice Bovard ordered a pre-sentence report. A detailed report was compiled by Chris Boughton, who remains Mr. Lumley’s probation officer. According to Ms. Myers, Mr. Boughton and Mr. Lumley have a good relationship. Mr. Boughton was the second probation officer assigned to write the report. The first probation officer was female. When she met with Mr. Lumley, he asked her within the first few minutes of the interview if he could see her breasts. He said that he did not see anything wrong with the question. The interview was terminated. Mr. Boughton was then assigned. Mr. Boughton had several concerns with Mr. Lumley, including the fact that he continued to engage in substance abuse; and he continued to engage in inappropriate public sexual behaviour with little insight.

The Myers Review On The November 2019 Charges (The Third Set)

[13] At the Myers hearing before Justice Bawden a plan was presented by Ms. Myers, acting as amicus. Mr. Lumley was to be released on his own bail. He was to contact shelter placement upon release in order to find a shelter bed. He was also to immediately contact Samantha Dangubic of Sound Times. Sound Times is a social services agency that assists those with mental health difficulties. Ms. Dangubic had agreed to assist and support Mr. Lumley. Mr. Lumley was, in turn, to attend any appointments that Ms. Dangubic had arranged for him. Mr. Lumley was also to contact his probation officer within two days of his release. One of the conditions of the bail was that Mr. Lumley was not to be within 300 meters of any place where children under 16 were present, including a school, playground, daycare, or swimming area.

[14] Justice Bawden was aware of Mr. Lumley’s history, including his mental health history, and criminal record. He was aware that phallometric testing had given some indication of pedophilia, but noted that Mr. Lumley had never been convicted or charged with an offence involving children, His reasons for releasing Mr. Lumley were stated cogently at paras. 8 and 9 of his reasons:

Although Mr. Lumley has been in custody for over six months, it does not appear that there has been any material progress in his case. The fault for this may well lie with Mr. Lumley himself who has chosen to represent himself.

It is clear that Mr. Lumley's most recent offences are the product of his mental illness. Further incarceration will provide no enduring protection for the public and is not justifiable where there are reliable community supports available which provide some hope of addressing the root causes of his offending behavior.

[15] What is clear from Justice Bawden’s reasons is that he believed that Mr. Lumley’s case had not proceeded properly through the system. In other words, it appeared that Mr. Lumley’s charges were languishing. I agree: a trial date has still not been set for any of the charges, although counsel informed me that resolution discussions are taking place. Whether there has been unreasonable delay is a factor that a judge may take into account when determining whether continued detention is justified: Myers, at para. 32; Criminal Code at s. 525(4). What is also clear from Justice Bawden’s reasons is that he believed that a jail setting was not the right place for a person with Mr. Lumley’s mental health issues. I completely agree with him on that point as well. Unfortunately, developments have changed the circumstances.

What is to be done with Mr. Lumley?

[16] That brings me to the current Myers review. This review is on the fourth set of charges – the charges alleging Mr. Lumley engaged in public masturbation around children in a playground.

[17] Ms. Myers acted as amicus for Mr. Lumley again before me. The plan that Ms. Myers presented is essentially the same plan that was presented to Justice Bawden. It involves releasing Mr. Lumley on his own bail and directing him to a shelter bed and supervision from Sound Times. Ms. Myers acknowledged that Mr. Lumley does not have a surety available to supervise him and ensure that he gets to his appointments and to court. Apparently, Bail Program will no longer supervise Mr. Lumley. I have no doubt that if a better plan were possible Ms. Myers would present one.

[18] Here is the basic problem in this case: more jail time for Mr. Lumley will not address “the root causes of his offending behaviour”, to use Justice Bawden’s phrase; and yet, there seems to be no reasonable alternative to continued detention in a jail setting. Mr. Lumley’s behaviour has grown more troubling. It has also accelerated. On September 23, 2019 Mr. Lumley had been out of custody for 40 days (after 300 days in custody) when he was arrested for allegedly masturbating on the TTC. On November 24, 2019 Mr. Lumley had been out of custody for 32 days when he was arrested for allegedly masturbating in public at Pintail Crescent. On May 20, 2019, Mr. Lumley had been out of custody for 7 days when he was arrested for allegedly masturbating around children at a playground.

[19] I am concerned that what was once a theoretical possibility – a crime involving children – has now become considerably more real. I am also concerned that if I released Mr. Lumley he would remain effectively unsupervised.

[20] I was provided with an incident report from the Toronto South Detention Centre from December 2019. A new inmate reported to the correctional staff that he had had a disturbing conversation with Mr. Lumley. This inmate was concerned about Mr. Lumley’s safety due to the “inmate subculture”. According to this inmate, Mr. Lumley told him that he fantasized about burning young children after having sex with them; that he dreams about being able to have sex with a baby until he watches the baby die; that Mr. Lumley knows that this is wrong, but he cannot help feeling this way; that Mr. Lumley would like to perform these acts upon his release and then share it with everyone by posting it on the internet; and that Mr. Lumley told him that he likes to masturbate in public because he enjoys when people watch him.

[21] There are credibility issues with anything an inmate at a detention facility reports to the staff about another inmate. This report, however, has the ring of truth. Mr. Lumley was not previously known to this inmate. They had just met. This inmate obviously knew nothing of Dr. Iosif’s report, including the phallometric and other testing that indicated a risk of violent or pedophiliac behaviour. That inmate also could not know that Mr. Lumley would be masturbating in a park around children – that alleged event had yet to take place.

[22] That incident report is quite alarming, for obvious reasons.

[23] As I have noted, in determining whether Mr. Lumley’s detention in custody continues to be justified, I must have regard to the factors set out in s. 515(10) of the Criminal Code. All are agreed that the secondary ground is engaged here. Mr. Lumley must demonstrate why his detention is not required for the protection or safety of the public.

[24] In R. v. Manasseri, 2017 ONCA 226, Watt J.A. discussed the protection and safety of the public in this context at paras. 85-88:

Three brief points should be made about the secondary ground.

First, to determine whether the secondary ground controls the release/detention decision, requires a consideration of all the circumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct ("commit a criminal offence") or an interference with the administration of justice.

Second, in connection with the specified circumstances encompassed by the clause "including any substantial likelihood that the accused will, if released from custody, commit . . . ", the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.

Third, where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.

[25] Based on Mr. Lumley’s record, his psychiatric history, his history of non-compliance with court orders, his accelerating behaviour, the dangerous involvement of children in his most recent alleged behaviour, and his disturbing comments to a fellow inmate, I find that he cannot meet his onus. There is a substantial likelihood that he will commit further offences. Indeed, I am quite certain of it. I am very much aware that Mr. Lumley may not serve that much more time, if any, in the event of a conviction. Unfortunately, the risks associated with a further offence, especially since it might involve children, are simply too great. I am also very much aware that Mr. Lumley needs to be in a setting where he can be treated for his mental health problems. If he could be closely supervised – extremely closely supervised – in such a setting, then I would make that order.

What is the impact of the Covid-19 pandemic?

[26] There is no doubt that the current Covid-19 pandemic is still with us. It continues to be a danger to people in custody. The correctional authorities, however, appear to have done a good job of limiting its effects. No doubt this is due to the measures they have taken, including the release of the least dangerous inmates in an effort to lower the numbers of people in the prison population. According to the Information Note dated October 5, 2020 from the Ministry of the Solicitor General, the provincial inmate population has decreased by 21% since March 16, 2020. As of October 2, 2020, there was one inmate in custody at the Toronto South Detention Centre who had tested positive for Covid-19, and no staff. There is no evidence that Mr. Lumley has any physical ailments that would make him more vulnerable to Covid-19.

[27] I agree with the comments of Justice Quigley in R. v. Bell, 2020 ONSC 3962 at para. 83:

There is also the question of the impact of COVID-19, but the jurisprudence that has developed makes clear that will not be an answer where primary or secondary ground concerns are the basis for detention. Persons who present a substantial likelihood of endangering the public by committing offences or interfering with the administration of justice will likely remain in detention. Accused persons who were previously un-releasable will likely remain un-releasable.

[28] I also adopt the comments of Justice Molloy in R. v. Newman, 2020 ONSC 4879, where she stated at para. 21: “As many other judges have noted, the COVID-19 pandemic is not a ‘get out of jail free’ card. There are individuals who represent such a risk to the community that releasing them prior to trial would undermine public confidence in the justice system.” This is not a tertiary ground case, but those words apply to Mr. Lumley.

Disposition

[29] Mr. Lumley’s detention continues to be justified pursuant to s. 525 of the Criminal Code.

Released: October 20, 2020