minicounsel

DATE: February 11, 2021 Court File #: 18-35005029

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MATTHEW BOUFFARD

Before: Justice P. Downes

Heard on: January 13 and December 2, 2020. Reasons for Sentence delivered on: February 11, 2021.

Counsel: Jackie Garrity...................................................................................... Counsel for the Crown Seth P. Weinstein........................................................................... Counsel for Mr. Bouffard

P. DOWNES J.:

Introduction

1. Introduction

1Isabelle Bouffard was born on September 24, 2018. Her birth was uncomplicated, and she was a healthy baby, weighing in at 9 pounds, 5 ounces. An x-ray taken the day she was born showed no injuries or abnormalities, and she had no pre-existing medical conditions. 27 days later, she died from head injuries, some of which were intentionally inflicted by her father, Matthew Bouffard. In the course of her short life Isabelle suffered numerous other severe injuries at his hands – broken ribs, fractured clavicles, fractured vertebrae, bruising to the face and back, and broken bones in both knees and ankles.

2Mr. Bouffard was charged with the second degree murder of his daughter. On January 13, 2020, shortly before his preliminary inquiry was set to commence, Mr. Bouffard pled guilty to manslaughter in relation to Isabelle’s death. He must now be sentenced.

2. Isabelle Bouffard’s Life and Death

3At four days old, Isabelle left the hospital with her mother, Laura Durrant. The two of them went home to their apartment in Scarborough, where they lived with Mr. Bouffard and, at various times, with C.W., Ms. Durrant’s five-year-old daughter from a previous relationship.

4In the early morning hours of September 30, 2018, two days after arriving home from hospital, Laura Durrant’s incision from Isabelle’s caesarian birth ruptured and she returned to hospital by ambulance. She was treated and went home later that day with a prescription for medication to help her sleep.

5By October 4, Ms. Durrant’s incision had become infected, requiring her to attend for daily medical treatment at an outpatient clinic. Ms. Durrant’s difficulties meant that responsibility for Isabelle’s care during this time fell largely to Mr. Bouffard. Overnight feedings and the constant care required by any newborn left Mr. Bouffard, like most new parents, with little sleep.

6On the night of October 17, 2018, Laura Durrant went to sleep. Mr. Bouffard stayed awake with Isabelle. In the course of that night Mr. Bouffard assaulted Isabelle. He shook and squeezed her violently, so much so that he fractured six of her ribs and one of her thoracic vertebrae. He caused three bruises to her back and eight to her face and head. He fractured bones in both knees and both ankles. Mr. Bouffard was distraught. As he carried Isabelle into the kitchen to get a drink, he accidentally dropped her onto the kitchen floor, fracturing her skull.

7Mr. Bouffard did nothing to help his daughter. He did not tell Laura Durrant and sought no medical attention or other assistance. Instead, he put Isabelle in her bassinette and, at around 6 a.m., he went to sleep.

8Five hours later, on the morning of October 18, 2018, Mr. Bouffard and Ms. Durrant tried to wake their daughter. She was unresponsive. They called 911. Paramedics on scene assessed Isabelle’s condition as life-threatening. They intubated her and rushed her to Michael Garron hospital, where an ultrasound suggested bleeding between the brain and the skull. Isabelle was transferred to the intensive care unit at The Hospital for Sick Children. There, she was found to have a fractured skull, severe brain injury and multiple rib fractures. It was clear that she would not survive.

9Two days later Isabelle Bouffard was declared brain dead. On October 21, doctors removed her life support and she died. She had lived for less than a month.

3. Injuries and Cause of Death

10A post-mortem determined the official cause of Isabelle’s death to be “neuropathological complications of head injury.” It also revealed that she had suffered a catalogue of injuries, including those mentioned above, the agreed-upon causes of which are described under the following five categories:

Bruises to the head and face
- Eight recent bruises to the face and scalp caused by blunt force impacts or compression such as forceful squeezing of the head.
Skull fracture and associated injuries to the brain and eyes
- Extensive recent intradural and subdural hemorrhages (bleeding within and beneath the dura - the tough membrane surrounding the brain and attached to the skull) caused by blunt force, compression and shaking.
- Extensive recent subarachnoid hemorrhages (bleeding on the surface of the brain) caused by blunt force, compression and shaking.
- Recent florid retinal hemorrhages (bleeding within both eyes) caused by blunt force, compression and shaking.
- Recent optic nerve hemorrhages (bleeding around the optic nerves) caused by blunt force, compression and shaking.
Chest fractures
- Healing fractures to each of the two clavicles, caused by forceful shaking or squeezing.
- 15 fractured ribs (nine healing, six recent), caused by forceful squeezing of the chest.
- Two fractured thoracic vertebrae (one healing, one recent), caused by forceful squeezing of the chest.
Bruising to the back
- Three recent bruises to the back, caused by blunt force impact or forceful squeezing of the torso.
Leg fractures
- Six recent leg fractures - two at each knee and one at each ankle, caused by twisting (torsional injuries).

11All of these injuries were caused by Mr. Bouffard intentionally applying force to Isabelle Bouffard.

12Isabelle also suffered an 8.5 centimetre fracture of her skull, which was not intentionally inflicted. On its own this would not have caused her death. The impact associated with this fracture, however, may have caused some of the brain injuries and could have contributed to Isabelle’s death.

4. Matthew Bouffard

13Matthew Bouffard is 32 years old. He was a few days shy of his thirtieth birthday when Isabelle died. He is a Canadian citizen and has no criminal record. He has three siblings, including a twin brother. He had an unremarkable childhood, although there were some signs of challenges with his intellectual development and he was diagnosed with a mild cognitive learning disability and ADHD when young. He was bullied in his teen years and was, by all accounts, a bit of a loner. Mr. Bouffard struggled academically, never completing high school, believing that he was not capable of doing so.

14After the failure of an early relationship, he was despondent and attempted to commit suicide. Another relationship in 2011 produced a daughter. He provides no financial support and does not have access to her. Around the same time, Mr. Bouffard’s parents divorced.

15Mr. Bouffard and Ms. Durrant met about five years ago. They moved in together with her daughter and remained in a relationship until Isabelle’s death. Ms. Durrant told the author of Mr. Bouffard’s presentence report that their relationship had its struggles. There were suggestions of physical abuse and excessive alcohol use. But these are uncorroborated, and they are not a factor in my consideration of the appropriate sentence. Mr. Bouffard and Ms. Durrant have had no contact since his arrest on October 18, 2018.

16At the time of the presentence report, almost a year ago, Mr. Bouffard was in a new relationship with a woman he had been dating for few months. During his time on bail Mr. Bouffard has been living with his mother at the family home, under strict 24/7 house arrest.

17Mr. Bouffard is financially supported by his parents. He has been unemployed since his arrest, although he previously held a variety of short-term jobs, with a particular interest in and ability as a chef.

18Mr. Bouffard reported that he has abused alcohol since he was a young man, something he has never really taken any serious steps to address. According to his psychologist, however, he has abstained from consuming alcohol since Isabelle was born. He has no serious drug abuse issues.

19Dr. John VanDeursen is a psychologist who has been working with Mr. Bouffard weekly since he was released on bail at the end of November 2018. He had also seen Mr. Bouffard for several sessions when he was 18 years old and again when he was 20 in order to address his academic progress and his overall emotional wellbeing.

20Mr. Bouffard reported being sexually abused when he was young.

21In his March 2020 report, Dr. VanDeursen observed that as a result of Isabelle’s death and his role in it, Mr. Bouffard’s

clinical presentation has been of severe Post-traumatic Stress Disorder superimposed on a longstanding chronic Major Depressive Disorder. His mental status has fluctuated between “numb” dissociative states to brief episodes of extreme emotional despair associated both with self-harm and dangerous suicidality.

22The doctor went on to say that medication, psychotherapy and the consistent and significant support of his family have all contributed to the stabilization of Mr. Bouffard’s mental health and have prevented him from taking his own life. He reported that as of a year ago, “he impresses now as accepting what has happened and anticipates a jail sentence. He is also actively engaged in visioning and planning for a life through and after jail.”

23Dr. VanDeursen expressed the opinion that Mr. Bouffard’s mental illness was a significant factor contributing to the death of Isabel. As he put it:

[He] better recognizes the degree to which he has suffered a serious mental illness that essentially went untreated, that his mental illness is a significant factor in what happened with his daughter (primarily related to how overwhelmed and incapable of coping he became) and, despite everything that has occurred, it is possible for him to be healthier and happier.

Although Dr. VanDeursen believes that Mr. Bouffard is doing better and that he is no longer experiencing what he terms the “exceptional circumstances that played a role in the tragic events,” he thinks that his mental health vulnerabilities will require ongoing psychological and psychiatric treatments.

24A letter from Mr. Bouffard’s family doctor reported that he has experienced two seizures in the last year.

25I received 30 letters of support written by friends and family of Mr. Bouffard. Many of them spoke of his kindness, his gentle nature and that this conduct was completely out of character for him.

5. The Sentence Sought by Each Party

26The Crown seeks a sentence of eight years; the defence five to six. Both counsel say there should be some credit against the sentence to reflect pre-sentence custody, strict house arrest bail conditions and the pandemic environment under which at least some of Mr. Bouffard’s sentence will be served. They disagree on precisely how much credit should be given. There are agreed-upon ancillary orders.

27The Crown’s position can be succinctly stated: Mr. Bouffard’s moral blameworthiness for Isabelle’s death is profound. The presence of both recent and healing injuries shows that Mr. Bouffard’s conduct was not a momentary outburst; it was part of a pattern of abuse inflicted on a defenceless child who was utterly dependent on him for her health and safety. His abuse of the parental trust he bore was absolute, and principles of denunciation and deterrence command a significant penitentiary sentence. Were it not for his guilty plea and lack of criminal record, a double-digit penitentiary sentence would, in the Crown’s submissions, be warranted.

28On behalf of Mr. Bouffard, Mr. Weinstein, while not downplaying the seriousness of Mr. Bouffard’s conduct, submits that there are mitigating factors, including his mental health and substance abuse issues, which serve to reduce his otherwise obvious moral blameworthiness. He says that the lack of criminal record, the fact that Mr. Bouffard fathered a child prior to Isabelle with no reported incidents of abuse, and his strong network of support, all point towards this offence as an exceptional and isolated event, diminishing the need for specific deterrence.

6. The Law of Sentencing

29Sentencing should be a very human process. It is not a scientific exercise, and there is rarely only one outcome capable of satisfying the relevant sentencing objectives. As the Supreme Court of Canada has put it, sentencing “involves a variety of factors that are difficult to define with precision.” [1] Nevertheless, sentencing judges must be guided by statutory and common law rules and principles in order to arrive at a fit sentence that is responsive to the particular offence and the particular offender before the court. [2]

30The case-specific nature of the sentencing process is what makes the proportionality principle in s. 718.1 of the Criminal Code the touchstone of all fit sentences: a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” [3] In other words, it must be enough to satisfy the relevant sentencing objectives, but no more than is necessary. [4] As Doherty J.A. explained in Hamilton:

The “gravity of the offence” refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence....

The “degree of responsibility of the offender” refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender’s personal responsibility for the crime. [5]

31Proportionality, however, is not the only sentencing principle. The principle of restraint dictates that if a term of imprisonment is to be imposed, it should, in effect, be “the least quantum which will achieve the overall purpose of being an appropriate and just sanction.” [6] It must be enough to properly reflect the sentencing objectives, but not too much.

32A sentence must not only accord with recognized principles, it must also be consistent with the purposes identified in s. 718 of the Criminal Code:

(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;

(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 acknowledgment of the harm done to victims or to the community.

33Particular categories of offences also carry with them specified sentencing objectives. Offences against children, or offences involving the abuse of a person who is vulnerable because of personal circumstances are two such examples applicable in Mr. Bouffard’s case. [7] Section 718.01 of the Criminal Code stipulates that a sentence for an offence that involved the abuse of a person under eighteen years, shall give primary consideration to the objectives of denunciation and deterrence.

34Arriving at the appropriate sentence also requires a consideration of both aggravating and mitigating circumstances. For example, it is a statutorily aggravating feature that the offence is committed against a family member, involved abuse of a child or was an abuse of a position of trust or authority in relation to the victim. [8] Pleading guilty and not having a criminal record are examples of mitigating factors which should serve to moderate the sentence. All of these particular circumstances are features of the sentencing landscape in this case.

35Where, as here, everyone agrees that there must be a jail sentence, how does a judge arrive at the correct length of jail term to be served? Aside from cases where the Criminal Code prescribes a minimum sentence (and this is not one of those), the “number” is typically arrived at by reference to sentences imposed by other courts in similar cases for people similarly situated. Indeed, this notion of “parity” is a principle of sentencing found in the Criminal Code. [9] It has also resulted in the adoption of “ranges” of sentences for certain offences and offenders, and the notion that certain “tariffs” can be applied in order to ensure a measure of consistency. That is why counsel provide the court with prior cases – each side wants to persuade the sentencing judge to impose a sentence closer to the end of the range most favourable to the interests they represent.

36I have reviewed all of the cases submitted by counsel, and more. It would serve little purpose to review each one in turn and compare and contrast each relevant factor. Some are more applicable than others. None perfectly match the circumstance of this offence and this offender. That is what makes sentencing ultimately an individualistic exercise. It must pay attention to the particular case before the court.

37It is sufficient to say that the range of sentences for the manslaughter of a young child under the care of a parent or guardian are well into the penitentiary range. [10] They readily encompass the Crown’s position of eight years. In my view, however, they struggle to include the defence position of five years. If that is a sentence within the appropriate range for a case like this, it is only just.

7. The Appropriate Sentence in This Case

38Serious crimes of violence against defenceless children will always attract a strong denunciatory sentence. [11] This is even more so where the abuse is of a child over whom an offender has primary care. And where that abuse results in death, the sentence must be one which is capable of reflecting society’s abhorrence of such conduct.

39At the same time, the proportionality principle requires that the sentence in this case be dictated not merely by the fact that death resulted from Mr. Bouffard’s conduct, since by definition all manslaughter cases will involve a death, and the fault requirement is simply the objective foreseeability of the risk of non-trivial bodily harm. [12] The sentence must accord with the degree of Mr. Bouffard’s moral culpability, something the Supreme Court of Canada has described as encompassing the offender’s intentional risk-taking, the consequential harm caused by his acts, and the normative character of the offender's conduct. [13]

40Attracting as it does a maximum sentence of life imprisonment, Canadian society has, through Parliament, signalled that manslaughter is one of the most serious offences in the Criminal Code. It can, however, be committed by a wide range of conduct, from the near accidental to the near murder, [14] resulting in an equally broad spectrum of sentences.

41In my view Mr. Bouffard’s conduct falls towards the higher end of the spectrum of blameworthiness. He was responsible for multiple injuries to Isabelle’s head which were a significant contributing cause of her death. It is extremely aggravating that he also inflicted on her the grim catalogue of other injuries described above. The assaults were numerous and severe and occurred on more than one occasion. I do not accept that Mr. Bouffard’s conduct in relation to Isabelle was simply a momentary loss of control or an impulsive act.

42At the same time, Mr. Bouffard has not been found guilty of an intentional killing, and the distinction between the moral culpability for murder and manslaughter must not be overlooked.

43The primary aggravating features of this case is obvious: Mr. Bouffard failed to meet the special obligation of a parent to care for his own newly born child, whose vulnerability and dependence on him need no elaboration. As the Supreme Court of Canada noted recently in the context of child sexual abuse sentencing,

Children are most vulnerable and at risk at home and among those they trust….The abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility. An offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger. The breach of the duty of protection and care thus enhances moral blameworthiness. [15]

44Mr. Bouffard never sought help in caring for Isabelle. [16] The record provides scant consistent explanation for his actions. The closest we get is the psychological assessment from March 2020 which said the following:

Mr. Bouffard describes the initial weeks following his daughter’s birth as exhausting and overwhelming. He recalls that his partner was struggling with significant medical complications requiring daily medical treatments for which she went elsewhere. When questioned about this, he states that their apartment and living situation was in a state of extreme disarray and that his partner was highly concerned that visits to the home by medical staff would result in the involvement of the Children’s Aid Society. He describes the concern about any involvement by the CAS as a significant factor that essentially prevented any and all attempts to ask for help either from medical and community resources or from family members.

45Mr. Bouffard’s mother in her letter to the court spoke of his being “ill-equipped to be a parent” and his lack of ability or knowledge about how to care for Isabel.

46The agreed facts and sentencing material filed on Mr. Bouffard’s behalf leave little doubt that, as a new parent, he was ill-equipped to deal with the challenges inherent in that role. That is not an aggravating fact. Indeed, it is a fact of life for many new parents. But in my view, it is aggravating that he took no steps to ameliorate his circumstances or to seek the help that he and his family so obviously needed.

47Another factor which places this offence towards the higher end of the seriousness spectrum is the degree of suffering and pain Isabelle must have endured prior to her death. [17] Several of her injuries were described in the post-mortem as “healing,” meaning that they had been caused at a date earlier than the ones inflicted the night before she was taken to hospital. Both counsel agreed, however, that the record allows for no more than a finding that there were two “discreet events” between September 28 and October 17, 2018 which gave rise to the numerous injuries. As Mr. Weinstein put it in his submissions, there were a “series of injuries that were suffered prior to the fatal injuries in October.” Whatever the precise date they were caused, it does not take an expert opinion to conclude that Isabelle must have suffered terribly from the injuries visited on her by Mr. Bouffard.

48Needless to say, the impact of Mr. Bouffard’s offence on Laura Durrant and other members of her family is profound. Ms. Durrant and her parents, Gordon and Christine, all wrote moving and thoughtful Victim Impact Statements. Laura’s daughter provided drawings and photographs illustrating her reaction to the loss of her sister. Laura wrote this:

I watch people with their children and see them celebrating milestones we should be celebrating with Izzy. I see mothers and fathers with their babies and can't understand why I only got 27 days with mine. There are years of memories that we will never get create [sic] with Isabelle. I'll never hear her voice, or know what she would have looked like. I wonder what she would have enjoyed doing and how her personality would have developed. Every holiday, every time we get together as a family, Isabelle isn't there. Living without her hurts every day.

49Laura’s parents wrote of the devastating impact of the loss of their granddaughter and the unbearable pain they have felt since her death. I note that Gordon Durrant’s statement also included a generous acknowledgement of the grief and trauma that Mr. Bouffard’s parents must also be experiencing. That is a commendable and selfless gesture reflecting as it no doubt does the nightmare experience that Mr. Bouffard’s family must themselves be living through.

50Turning to the mitigating factors, Mr. Bouffard must be given appropriate credit for his guilty plea. This is a meaningful guilty plea, both in terms of the savings to the administration of justice it represents and, more importantly, as a gesture of remorse. By his guilty plea, Mr. Bouffard has relieved Isabelle’s family from the pain of what could have been a protracted multi-stage proceeding. Mr. Bouffard addressed the court candidly and sincerely. I accept that he is very remorseful for his conduct, and the sentence must take account of that fact.

51Mr. Bouffard has no criminal history. He is still relatively young. He has a solid network of friends and family around him, many of whom provided impressive letters of support at this proceeding. He has sought and obtained psychiatric counselling in relation to both precipitating factors and the impact of these events, as well as the lingering impact of having himself been abused in his youth. [18] His continued rehabilitation is a relevant factor in determining the length of jail term he must serve. That said, rehabilitative considerations are in my view secondary to the fundamental principles of denunciation and general deterrence which must be the primary sentencing objectives in this case.

52There is, as I have said, a vast range of moral culpability captured by the single offence of manslaughter. As the Court of Appeal has noted, it serves little purpose to classify manslaughter under descriptive subcategories such as “aggravated” or “typical.” [19] What is required is a sentence that adequately and proportionately reflects the conduct and the degree of moral culpability of the offender.

53In my view the controlling authorities suggest a range of between 6 and 12 years in a case such as this. The circumstances of Isabelle’s life and death could easily command a sentence at the higher end of that range in order to send a message that the lives of the most vulnerable and dependent must be protected, particularly by those most directly responsible for their wellbeing. In my view the Crown’s position of eight years is moderate and just.

54The facts of this offence are shocking. It is difficult enough to fathom what could drive any person to treat a child in this manner; when the offender is the child’s parent, it is incomprehensible.

55In the individualistic sentencing environment, a case-by-case analysis of other cases to find the “right number” is unproductive. I will, however, look briefly at the cases submitted by the parties to gauge an approximate range of sentences for similar cases.

56Mr. Weinstein relies on Justice Molloy’s comment at paragraph 61 of Alexander, that a sentence of four to six years is typical in cases of a parent killing a child by way of an impulsive act committed out of frustration or anger. In my respectful view, the range is broader than this. In any event, as I have already noted, the evidence in this case goes further than suggesting that Mr. Bouffard’s conduct was simply an “impulsive act.” Indeed, it is difficult to conclude that there is much to distinguish this case from Alexander in terms of the gravity of the conduct and the degree of responsibility of the offender. Alexander involved the death of a baby, not as a result of an intentional assaultive act by the accused but as a result of her failure to secure medical attention for injuries that the trial judge found for the purposes of sentencing were accidentally inflicted. The Court of Appeal had no difficulty in endorsing the 11-year sentence imposed by the trial judge.

57A year after Justice Molloy’s decision in Alexander, the Court of Appeal in Summers took no issue with range of 8 to 10 years proposed by counsel at sentencing in a case which bore many similarities to Mr. Bouffard’s. Indeed, in many ways Mr. Summers’ circumstances were more sympathetic in that he made efforts to get help from others when he knew he was unable to care properly for his baby. He was also 19 years old at the time of the offence. He was sentenced to eight years.

58The defence points to the sentence imposed in R. v. Oben, [20] in which Justice Ellies adopted the range endorsed in Alexander. Oben, however, was a joint submission for six years in circumstances where the accused pled guilty to manslaughter by criminal negligence after the child sustained significant injuries while in the accused’s care for only half an hour.

59The only other “quantum” authority relied on by Mr. Weinstein is Justice Garton’s decision in E.M., in which the accused received a six year sentence for the beating death of her 34-month-old daughter. The injuries which caused her death were inflicted by a single assault in which E.M. lost her temper and “lashed out” at her daughter a single time out of anger and frustration and left her on the couch, unaware of the full extent of the child’s injuries. When she found her daughter in distress, E.M. called 911. E.M. also admitted responsibility for having caused extensive bruising to her child’s body by administering what she called physical discipline, but which were clearly unlawful assaults.

60The four to six year range proposed in Alexander is also questionable in light of the Court of Appeal’s decision upholding an effective eight year sentence for the manslaughter death of the accused’s 53-day-old son in Gregoire. The accused in that case had shaken and struck his baby after losing his temper, causing fatal internal injuries. The accused failed to alert medical authorities. It seems to me that this is a classic instance of, as Justice Molloy had put it in Alexander, “a parent killing a child by way of an impulsive act committed out of frustration or anger.” Yet the Court of Appeal had no difficulty with the eight year sentence imposed. [21]

61Mr. Bouffard’s degree of responsibility and moral culpability is high. He effectively had sole care of Isabelle while Ms. Durrant was unwell. He inflicted injuries on her prior to October 17 and sought no help either for Isabelle or for himself. This is not a case where Isabelle’s injuries were accidental or caused by others, and for which Mr. Bouffard failed to obtain medical assistance. He failed to do so after having caused the injuries himself. In my view this represents a high degree of moral blameworthiness. [22]

62Mr. Bouffard has undergone significant psychological assessments and counselling. There are indicia of intellectual deficiency which may go some way to explain his conduct. But not, in my view, very far. I appreciate that it is Dr. VanDeursen’s opinion that mental illness was “a significant factor in what happened,” but that does not sit comfortably with his own report of Mr. Bouffard’s explanation that he failed to seek help for fear of CAS attending the apartment. It also does little to diminish Mr. Bouffard’s responsibility for his conduct. Thousands of parents suffer from similar mental health deficits without ever losing sight of their cardinal obligation to keep their defenceless children safe from harm. By the time Mr. Bouffard laid Isabelle in her crib in the early hours of October 18 and went to bed, she had suffered massive physical injuries, from which she never had a chance of recovering.

63I have carefully considered Mr. Weinstein’s able submission that the principle of restraint should lead me to impose a sentence below that sought by the Crown. To be sure, it is an important principle. In my view it is crucial for a sentencing judge in a case such as this to be fully alive to the danger that the sheer horror of the facts may obscure the need to show restraint. I have reflected carefully on my own reaction to the facts of this case, cognizant of the need to approach my task not emotionally or mechanically, but dispassionately and in accordance with what the law requires.

64In my view the sentence proposed on behalf of Mr. Bouffard does not adequately address the denunciatory principle. The Crown submits that the eight years it asks the court to impose appropriately accounts for the mitigating circumstances I have described earlier. I agree with the Crown’s position. I have little doubt that if convicted after a trial, Mr. Bouffard could quite easily be facing a sentence in the double digit penitentiary range.

65When I look at the entire circumstances of this case, I am persuaded by the Crown’s submission that a jail term of eight years takes full account of the mitigating factors. I am also satisfied that a sentence of that length is required to give full effect to the principles of deterrence and denunciation mandated by s. 718.01 of the Criminal Code.

66Mr. Bouffard is sentenced to a term of eight years in the penitentiary.

8. Credit Against the Sentence

67Mr. Bouffard spent 30 days in custody after he was arrested, for which the parties agree he should receive 45 days of credit. He has been on bail for almost 27 months. Mr. Weinstein submits that the combination of Mr. Bouffard’s pre-sentence custody, his time on strict bail conditions (“Downes credit”) and the impact of inevitably having to serve at least some of his jail sentence under the current pandemic environment warrant a sentence reduction of 12 to 18 months. The Crown says no more than 12 months is appropriate.

68The extent to which a jail sentence is mitigated by strict bail conditions depends on several factors, including but not limited to:

the period of time spent under house arrest;
the stringency of the conditions;
the impact on the offender’s liberty; and
the ability of the offender to carry on normal relationships, employment and activity. [23]

69Mr. Bouffard has been subject to the same bail conditions for the entire period of his release. He is required to reside with his mother who, along with his father, is his surety. He must remain in his residence at all times unless in the presence of at least one of his sureties. He is also not permitted to be alone in the residence. There must be another adult present at all time. Clearly this is a significant restraint on Mr. Bouffard’s liberty, which on its face would tend to attract considerable credit against any jail sentence.

70The extent of any credit to be attributed to the strict house arrest bail is, however, attenuated somewhat by two factors: first, there is no evidence of the particular impact of these restrictions on Mr. Bouffard’s liberty. In Downes, Rosenberg J.A. held that unlike pre-trial custody, the impact of even the most stringent bail conditions such as house arrest, cannot be assumed. He also pointed out, however, that “Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence.” They must be taken into account as a relevant mitigating circumstance, and I have done so, but on this record am unable to fully account for the particular impact of those conditions on Mr. Bouffard. [24]

71Second, and related to the question of impact, it is not disputed that the Crown had agreed to vary Mr. Bouffard’s bail to permit him to be at home without an adult present and to allow him to be outside the home for work purposes without a surety present. Mr. Bouffard did not pursue those offers.

72I have found no clear statement on whether and how the Crown’s willingness to consent to more liberal conditions of release affects the issue of Downes credit, although it seems to me a matter of common sense that it must diminish the impact of the bail terms somewhat, or at least say something about how impactful the house arrest conditions were on an offender. This is a position at least inferentially supported by some authority from the Court of Appeal. [25]

73With respect to the impact of COVID-19 as a collateral consequence of sentencing at this time, I adopt the reasoning of Pomerance J. in R. v. Hearns. [26] Mr. Bouffard will serve at least the first portion of his sentence during the pandemic and I accept that the impact of the sentence will be somewhat greater on Mr. Bouffard than it otherwise would have been.

74Including 45 days effective credit for presentence custody, I am prepared to grant Mr. Bouffard a total of 15 months of mitigating credit against his eight year sentence. Mr. Bouffard is therefore subject to serving a remaining sentence of six years and nine months in jail.

9. Ancillary Orders

75Manslaughter is a primary designated offence. As such, s. 487.051(1) of the Criminal Code makes an order that a sample of his D.N.A. be collected mandatory, subject only to a very narrow exception. The defence correctly does not seek to invoke that exception and I therefore order Mr. Bouffard to provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.

76A section 109 order prohibiting Mr. Bouffard from possessing designated weapons and ammunition will be imposed for life.

77There will also be an order under section 743.21(1) of the Criminal Code. Mr. Bouffard is prohibited from communicating, directly or indirectly with Laura Durrant, Christine Durrant, Gordon Durrant or Ms. Durrant’s daughter, C.W., whose full name will be recorded on the order, during the custodial period of his sentence.

10. Some Concluding Remarks

78People who work in the criminal justice system get used to sadness, misery, evil and tragedy. Mr. Bouffard is not an evil person. But he did a terrible thing which had unspeakably tragic consequences. No reasonable person could feel anything but profound sadness at what happened to Isabelle Bouffard. This case is, unfortunately, not unique. But it is deeply disturbing, even to the most seasoned of criminal justice participants.

79The sterile environment of a courtroom and the procedures accompanying a criminal prosecution must not obscure what is at the heart of this case: a healthy, helpless baby with her whole life ahead of her lost her chance at that life at the hands of the one person whose singular task was to ensure her care and wellbeing. No guilty verdict, no jail term and no amount of regret will ease the pain Isabelle suffered, or the anguish those close to her feel at her loss. Matthew Bouffard’s responsibility for the death of his daughter is something he will have to live with for the rest of his life. The few years he will spend in jail as a sign of society’s denunciation of his conduct, seem a small consequence in the circumstances.

80Mr. Weinstein and Ms. Garrity have performed their respective roles with a high degree of skill and integrity. I am very grateful for their work.

P. Downes J. February 11, 2021