WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court File and Parties
Date: October 7, 2022 Information Nos.: 0211-998-21-3944-01
ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING
v.
J.C.
BEFORE THE HONOURABLE JUSTICE K.A. BAKER
On October 7, 2022, at BRANTFORD, Ontario
APPEARANCES:
A. Minelli Counsel for the Crown D. Henderson Counsel for J.C.
Reasons for Sentence
Mr. C. is guilty of criminal negligence causing the death of his son A-1. A-1 was six months old at the time of his death. He had sustained a severe burn to his back, extending from his waist to his neck. This had been caused by the application of a butane torch to A-1's back, by his four-year-old sibling. Mr. C. did not take A-1 to a doctor or to the hospital. As a result A-1 died.
In obviously considered initial sentencing submissions, the Crown sought a sentence in the range of seven to nine years. At the conclusion of the Crown's submissions defence submitted that in fact defence had been notified that if it joined the Crown in seeking a sentence of seven years, it would become a, “joint submission in law”.
The matter was then stood down for counsel to have further discussions to clarify their respective positions and to provide authority for the proposition that defence agreeing to a lower end of a range would somehow constitute a, “joint submission in law”.
The distinction of course is important because it fundamentally changes the applicable legal principles. When the court resumed a short time later counsel advised that they were now pursuing a joint submission for an eight year sentence, with enhanced credit for some of the presentence custody. The issue of the seven-year sentence becoming a, “joint submission in law” was not pursued.
The specific circumstances of the offence were as follows. On February 12th, 2021 police were called to the residence of Mr. C. and his partner, K.Z. Their six month old son A-1 C. was found in the home, lying on a blanket, and was pronounced dead at the scene. The boy had a large burn covering the majority of his back. Photographs of the child's injuries were entered into evidence. The photographs were so heart-rending that they were acknowledged to require sealing in the court record.
Police observed that the residence was in disarray, with dirty clothes on the floor throughout the residence. There was evidence of drug use including burnt tin foil on the kitchen counter in plain view, and easily accessible, as well as glass pipes and stems used for smoking drugs. Also present in the residence were Mr. C. and Ms. Z.’s two other children, A-2 C., age three, and D.W., age four.
A-1 C.'s body was examined by forensic pathologist Dr. Christopher Bell. The postmortem examination revealed that A-1 was underweight, unwell, and dehydrated. He had two large necrotic ulcers on his back that could've been the result of either heat or chemical burns. He had low concentrations of methamphetamine and fentanyl in his blood as well as a high concentration of the drug lidocaine.
Lidocaine can cause death by excitation of the central nervous system, and it's found in numerous counter topical creams and ointments, including Polysporin for Kids.
Dr. Bell determined that the cause of death was the effects of the burns and lidocaine toxicity. Both the effect of the burns and the lidocaine toxicity could have caused the death, independent of one another.
The effect of the burns alone could have caused the child's death. Dr. Bell opined that with appropriate and timely medical care A-1 C. could have survived his injuries.
On February 12th, 2021 J. C. provided a voluntary videotaped statement to police. Mr. C. told the police that a couple of days earlier, at approximately 4:00 a.m. he was taking care of the three children alone. His four-year-old son, D.W. accessed a butane torch, normally used for smoking marijuana. Mr. C. awoke to the sound of screaming, and discovered that D. had used the torch to burn A-1 C.'s back. Mr. C. picked the baby up and put him in cold water. He then applied an ointment to A-1's back, and continued to do so over the ensuing days.
Mr. C. did not tell Ms. Z. that A-1 was hurt. She did not know about the burns and did not see the injury.
Over the course of two days Ms. Z. did not handle her baby son. Mr. C. said that over that time Ms. Z. was out every night, using drugs. Mr. C. admitted that he had been using fentanyl in the days leading up to February 12th, 2021.
At no time did J. C. take his son for medical attention or care. Mr. C. told police he didn't have a phone to call 9-1-1, and he did not want to seek help from his neighbours. All Mr. C. did was to immediately put the child into cold water and make multiple applications of Polysporin for Kids on the baby’s wound. Mr. C. acknowledged to police that he should have called an ambulance immediately, and he took full responsibility for the death of his son.
Polysporin for Kids includes a clear warning that it is for external use only. The product has a manufacturer's warning that the cream is not to be used for serious burns.
During their investigation at the residence police officers also interacted with three-year-old A-2 C. A-2 was seen to put both of her knees together as if she had to urinate, and said that her, “privates hurt”. When she walked she continuously said, Ow.
A-2 was taken to be examined by doctors at McMaster's Children's Hospital on February 12th, 2021. A large gaping vertically-oriented wound was discovered on her genital area. The wound was quite deep and there was an accumulation of pus in it. Pediatrician Dr. Burke Baird opined that forceful blunt impact to the genital area was a plausible explanation for the injury. A-2 would have suffered significant discomfort at the time the wound was caused, and thereafter there would have been bleeding. It would have been obvious to a caregiver that medical attention was needed, and that should have been sought at the time of the injury. By the time the wound was discovered there was significant infection and it was too late to repair with sutures.
In addition to the injury to her genital region A-2 was observed to have evidence of dental decay; her hair was quite matted and dirty; both the soles of her feet had a large number of tiny wooden splinters. She also had a number of bruises, scratches and abrasions throughout her body. More than one would reasonably expect, for a child of her age.
The child D. was also examined on February 12th, 2021. D. had a large number of bruises on his back and the rest of his body.
Mr. C. has a criminal record that begins with three youth court involvements, commencing in 2009. This includes findings of guilt in relation to assault and robbery. His adult record commences as of January 1st, 2012, with convictions for break, enter and theft, and assault, for which he received a total sentence of four months. He then has convictions for failing to comply with a probation order and failing to attend court from April 16th, 2013. His last conviction is dated March 30th, 2017, and it is for mischief. He was given a suspended sentence and placed on probation for a period of 12 months.
A presentence report was submitted for Mr. C. It indicates that Mr. C. was raised primarily by his mother, with whom he had a good relationship. At around 14 years of age Mr. C. became involved in a criminal lifestyle that resulted in his repeated admission into youth custody and group homes through his teenage years.
Mr. C. described Ms. Z. as a, “drug addict”, and noted that her use of substances had adversely affected their relationship. It also triggered the involvement of child protection authorities. Although Mr. C. had been maintaining employment at times, he ultimately quit his job to stay home with his children on a full-time basis.
In November 2020 child protection authorities designated Mr. C. as the primary caretaker [sic] to his children because of the mother's addiction issues.
Mr. C. told the probation officer that he felt responsible for his son's death, and recognized that he, “should have done things differently”.
The presentence report also quotes the investigating officer, Detective John Allan, who said that Mr. C. was, “mentally and physically unwell” at the time of his arrest. Detective Allan said it was apparent that Mr. C. was dealing with the grief and trauma of his son's death.
The Crown has provided several authorities with respect to sentencing in cases of this nature. In Regina v. Alexander, 2011 ONSC 6839, the offender was found guilty of manslaughter by failing to provide the necessities of life. The victim, a 19-month-old child, had sustained, “horrific” burns to 40 percent of his body when he was immersed in scalding water. The accused, who had sole charge of the child at the time, failed to seek medical attention and did not call 9-1-1 until 12 hours later when he had passed from his injuries, and was already dead.
Ms. Alexander was 22 years old and had no prior criminal record. The court sentenced under the assumption that the injury was accidental. A sentence of 11 years was imposed.
In reaching that conclusion the court noted that statutorily aggravating factors were the child's age, and the fact that the offender, as his mother, was in a position of trust and authority over him. The court went on to comment on the fact that, as here, Ms. Alexander, “was the one and only person who had seen the injuries, and the only person in a position to save him”.
In Alexander, Molloy, J. found that the single most aggravating factor was Ms. Alexander's complete abdication of her responsibility as the child's mother, noting, “it's difficult to comprehend how any human being could fail to get help for that poor child. But it is impossible to fathom the depths of self-interest that would permit a mother to betray her own tiny, vulnerable and utterly dependent child in this manner”.
The same observation can be made here. It is impossible to fathom the depths of self-interest that would permit a father to betray his own tiny, vulnerable and utterly dependent child in this manner.
The court found that Ms. Alexander did not have genuine remorse with respect to her offence. Ms. Alexander was also found guilty after trial. Neither of these facts apply to Mr. C.
In Regina v. Bakker and Dumont, 2017 ONSC 5924 the court was tasked with sentencing two offenders convicted of criminal negligence causing death and failing to provide the necessities of life when they failed to secure medical treatment for an infant that had suffered largely third-degree burns over 25 percent of his body. It was accepted that the burns were accidentally caused by hot coffee. Mr. Bakker and Ms. Dumont did not seek medical attention for the child, and left him to suffer over two days, while they busied themselves with shopping and other activities. Both were sentenced to nine years’ incarceration.
In Regina v. Siconolfi, 2015 ONCA 896, the Ontario Court of Appeal addressed an appeal of a sentence for criminal negligence causing death. The offender had left the child in a hot environment causing her to die of heat stroke. The offender had been sentenced to six years imprisonment less six months presentence custody. The sentence was upheld with the court noting that the appellant had a, “high level of moral blameworthiness and her offence involved a vulnerable infant victim”.
In Regina v. Eidt, 2019 ONCJ 884, Ms. Eidt had pled guilty to criminal negligence causing death. Ms. Eidt was the mother of a 20-month-old victim. The circumstances of the offence were such that Ms. Eidt was addicted to drugs. The child victim woke up before the accused one day and ingested carfentanyl and fentanyl, and died. Ms. Eidt was sentenced to four years, less 441 days for presentence custody.
The court specifically noted the inherent dangerousness of those drugs increased the offender’s moral blameworthiness. Further, the home conditions, which were completely unsuitable for a child, in part, due to the presence of drug paraphernalia, was deemed an aggravating factor.
In Regina v. Da Silva, 2005 Carswell Ontario, 7236, the Ontario Court of Appeal heard a Crown appeal of a sentence of three years imprisonment in relation to a conviction for manslaughter. Ms. Da Silva abandoned her baby for various periods of time over four days while she indulged herself in Salsa dancing and pursuing a new boyfriend.
Having left the child in her crib with virtually no food or liquids during a heat wave the child died of dehydration. At paragraph 10 the court noted, “We agree with the Crown that this is a serious offence even though the death was not caused by prolonged abuse or physical assaults. It exemplifies a shocking and prolonged abdication of parental responsibility that is almost incomprehensible. The trial judge would certainly have been entitled to impose a higher penitentiary sentence”. The court finally concluded that the sentence was, “at the very bottom of the range of what would constitute a fit sentence”.
In comparing Mr. C.'s situation to these cases I see it as being similar in many ways to that of Ms. Alexander. Like Ms. Alexander the single most aggravating factor is Mr. C.'s complete abdication of his responsibility as the child's father and caregiver. The cause of the injuries was also entirely preventable. It was not an unfortunate incident of accidentally spilling hot coffee, as in Bakker. It was caused by leaving a butane torch, accessible to small children, in a house full of drug paraphernalia. It was not a situation where the child got into drugs and passed away as the drugged parent slept, as in Eidt. It was a case where the child suffered terrible burns and was left to suffer over two days, as his father used drugs.
Although there are distinctions between Alexander and this case, the harm done was virtually the same. Moreover, Ms. Alexander, unlike Mr. C., had no criminal record. The period of time that she chose to ignore the child's suffering before the child died, was 12 hours, shorter than the two days here.
General Principles of Sentencing
The Criminal Code provides a fundamental purpose of sentencing as to contribute to respect for the law and maintenance of a just, peaceful, and safe society. The Criminal Code further provides this is to be accomplished by imposing, “just sanctions”, bearing in mind the objectives of denunciation of the conduct involved, specific deterrence of the individual offender from reoffending, general deterrence of others in the community who might be tempted to commit similar offences, separating the offender from society where necessary, reparation for harm done, and the promotion of a sense of responsibility in offenders while acknowledging the harm done to victims and the community.
It further provides that where an offence involved the abuse of a person under the age of 18, primary consideration must be given to the objectives of denunciation and deterrence.
Another principle of universal application in sentencing is that the sentence to be imposed should be increased or decreased to reflect the aggravating or mitigating circumstances of the offence or the offender.
Gravity of the Offence
This offence is very serious. As in Alexander, Mr. C.’s conduct caused the death of a small child, who, because of his age, was one of the most vulnerable members of our society.
Mr. C. was the parent and sole caregiver of this child on the days leading up to his death. He'd been entrusted to that role by child protection authorities. Mr. C. was using fentanyl in the days leading up to the event, whilst he was in sole charge of these three children. He was obviously neglecting his children, given their appearance when police attended. He hadn't secured the needed medical care for his daughter's injuries either.
Six-month-old A-1 is dead because of Mr. C.'s choice not to seek medical help. His siblings are left without a brother. Family members, including A-1’s aunt, K.I., who provided a victim impact statement, have clearly been left bereft. Ms. I. is heartbroken that her efforts to secure the safety of these children in the year leading up to A-1's death, all came to naught. As she asks, how can she recover from something that could have, and should have, been prevented?
In Regina v. Friesen, 2020 SCC 9, the Supreme Court of Canada wrote in the context of child sex assaults, that sentencing must look to the harm caused by these offences on the victims, so that the sentences reflect the full extent of the impact on them.
In a recent unreported case of Regina v. Gordon, decided September 22nd, 2022, Justice M.K. Wendl applied that principle to a different situation, being a random violent assault. In my view that principle also has application here because a child is dead, and a family is ripped asunder.
Mitigating Factors
Mr. C. has entered a guilty plea and accepted full responsibility for his actions. His guilty plea has spared the witnesses from having to testify about deeply traumatic matters. Mr. C. is obviously quite remorseful. He acknowledged responsibility and demonstrated remorse from the moment of his police interview, shortly after the offence. These are mitigating factors.
Then there is the issue of Mr. C.'s substance abuse issues. Certainly, addiction can be a mitigating factor to the extent that substance use impairs judgment and can reduce moral culpability. Here however, Mr. C. knew that he'd been designated by child protection authorities as the sole caregiver, precisely because his partner, the children's mother, was addicted to drugs. He could have revealed his own addiction and sought help from the authorities. He seems to have chosen not to do so.
Aggravating Factors
Mr. C. does have a criminal record and this is an aggravating factor. However, his last conviction was for some four years prior to this offence, and the conviction was not for a violent offence. No particulars about that last offence were provided, but for the notation of a conviction for mischief on the CPIC record. Curiously, the presentence report indicates that at the same time as that last conviction Mr. C. successfully completed the Partner Assault Response program.
The presentence report also notes that Mr. C. demonstrated a history of poor compliance with historical periods of community supervision, reflected by multiple breaches of community court orders. His last conviction for a violent offence was 10 years ago, in 2012. He has no prior convictions for offences involving breach of trust.
The photographs entered into evidence show horrific burn injuries to this little boy’s back. Mr. C. knew that the injuries had been caused by the application of a butane torch. The photographs show horrific wounds. The need for medical attention would have been more than obvious. Mr. C. knew the moment the injury was sustained because he woke up hearing the little boy screaming. Instead of seeking immediate treatment for these dreadful injuries he applied Polysporin for Kids — so much so that the child was effectively poisoned by the active ingredient, lidocaine.
Mr. C. was A-1's father and sole caregiver. At the material time he was in a position of trust. A-1 was six months old. He was extremely vulnerable. He sustained horrific and, doubtless, extremely painful wounds. Nothing was done to alleviate his pain. The degree of suffering he would have endured is unimaginable.
Mr. C. was the only person who knew of A-1's injury. He was the only one who could save him. He wouldn't. Why? He said because he didn't have a phone and he didn't want to have to ask for help from the neighbours.
These three children were obviously receiving inadequate care from Mr. C., and that too, is aggravating. A-1 was underweight and dehydrated when he was found. The circumstances of the deceased child's siblings were also dismal; three-year-old A-2 was unable to walk without continuously saying, Ow. The pain was the result of a deep, gaping, and infected wound on her genital area that should have received medical treatment at the time it was sustained. It would have been obvious to a caregiver that medical attention was required.
A-2 only received the necessary medical attention as a result of police being called when her brother died from lack of care.
Both of the children, A-2 and D., had injuries on their bodies, consistent with a lack of supervision.
Mr. C. disregarded his daughter, A-2’s obvious physical distress, and did nothing to get her medical attention from a deep and infected wound.
These were small vulnerable children and they were entirely dependent on their father for care. That fact and the fact that Mr. C. was in a position of trust in relation to these extremely vulnerable victims, is statutorily aggravating.
This was not a situation of momentary inattention. This was a prolonged abdication of parental responsibility that's almost incomprehensible. It's inconceivable that any adult, let alone a parent, could allow a child to suffer over two days, and not seek medical care.
Mr. C.’s inaction displayed a callous indifference to this small child’s suffering. This was not an impulsive or sudden lapse of judgment; he had two days, in which he stood by and watched his son suffer, and then die.
Mr. C. has a very high degree of moral blameworthiness. Accordingly, the principles of denunciation and deterrence must take precedence.
There is no sentencing resolve that can rectify this tragic situation. There is no sentence that will heal the people who have been terribly affected by this little boy's death.
The Task for the Court
The difference between this case and the cases presented to the court is that the court here is not entertaining submissions and then making its own determination of the appropriate sentence. That's because at the last minute the court was presented with a joint submission for a sentence of eight years, with enhanced credit for presentence custody. This substantially changes the court’s function.
In Regina v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, the Supreme Court of Canada instructed trial judges that they should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or be contrary to the public interest. It went on to specify that a sentence would only meet that threshold if it was, “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system”. The court noted that this was an undeniably high threshold.
The court went on to explain that defence and Crown counsel are well-placed to arrive at a joint submission because they are familiar with the strengths and weaknesses of their respective positions, as well as the circumstances of the offender and the offence.
Of course the whole logic of the Supreme Court's decision rests on the notion that counsel will undertake a thoughtful assessment of the situation and then come to the court with carefully considered joint submissions. Certainly that is conducive to promoting public confidence in the justice system. What is less likely to promote public confidence in the justice system is an approach that sees lengthy submissions made for a range of seven to nine years, which then morph to a defence assertion that there is an agreement to a joint submission to seven years, which isn't clearly disputed, only to morph again into a firm joint submission for eight years. It invites the inference that the analysis is not guided by careful analysis and transparent logic, but instead, subject to abrupt last-minute and largely unexplained changes.
The case is important to the people affected by this child's senseless death. The sentencing hearing was scheduled some weeks ago. It's difficult to understand how confusion on such an important point could have prevailed right into the hearing itself.
One is left to wonder what grieving family members and members of the public think of this process. One would think that a considered position would not be so fluid as to shift over the course of the hearing.
The concern is that this kind of approach trivializes the criminal justice system. It's unseemly.
In any case, the joint submission of eight years falls within the range of sentences that had been pronounced in similar cases. I cannot say that this sentence is markedly out of line with the expectation of reasonable persons aware of the circumstances of the case, such that they would view it as a break in the proper functioning of the criminal justice system.
Turning to the issue of how much credit should be applied to the presentence custody, the only documents I have been provided to support the enhanced credit are records from Maplehurst Correctional Centre, showing an admission date of May 18th, 2022, and a court date of October 5th, 2022. They show a total of 136 days in custody at that facility, and a total of 68 days of full lockdown and eight days of partial lockdown, for a total of 76 occurrences, as well as 17 days of triple-bunking. The record that I have cannot be reconciled with the joint submission of 150 days at two-for-one credit and 445 days at a one-point-five credit for a total of 967 days.
I therefore don't know the basis on which the Crown accepted the joint submission. However, even with the reduction of actual time to be served created by the additional credit of 75 days, I cannot say it brings the administration of justice into disrepute or is otherwise contrary to the public interest as defined by the Supreme Court of Canada.
Mr. C. is also entitled to an additional three days of presentence custody to reflect two additional days of time since the matter was first before the court, and the calculation was undertaken, plus one day enhanced credit.
Presentence custody must, and credit, must be expressed in a consistent way to sentence. Accordingly, Mr. C. will be sentenced to imprisonment for a period of eight years or 2,922 days. Against that he'll receive a credit for presentence custody of 597 actual days, with enhanced credit totaling 970 days, leaving 1,952 days to serve.
This is a secondary designated offence for DNA. Given the gravity of the offence I am satisfied Mr. C.’s personal privacy must give way to the public interest, and there will be an order for DNA. The victim surcharge will be waived, given the length of sentence.
.... WHEREUPON THE MATTER WAS CONCLUDED
Certificate of Transcript
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Karen Kearns, ACT 6335686389
(Name of Authorized Person)
certify that this document is a true and accurate excerpt of the transcript of the recording of
R. v. J. C.
in the
Ontario Court of Justice
(Name of Case)
(Name of Court)
held at
44 Queen Street, Brantford, ON
(Court Address)
taken from Recording 0211_5_20221007_124626__6_BAKERKAT.dcr which has been
certified in Form 1. November 1, 2022
Original signed by, “Karen Kearns”
(Date)
(Signature of Authorized Person(s))