Court Information

ONTARIO COURT OF JUSTICE DATE: 2023 10 18

BETWEEN:

HIS MAJESTY THE KING

— AND —

TRISTAN PIPER

Before: Justice Peter C. West

Guilty Plea Entered: January 17, 2023 Oral Submissions as to Sentence: September 18, 2023 Reasons for Sentence released on: October 18, 2023

Counsel: MS. T. Holland, Mr. N. Hegedus.................................... counsel for the Crown Ms. R. Abraham, Mr. T. Balka......... counsel for the defendant, Tristan Piper

WEST J.:

Introduction

1This case can only be described as tragic, heartbreaking and highly emotional. The death of Liam caused by his father, Tristan Piper, is difficult to comprehend or understand.

2Tristan Piper was originally charged with second degree murder and a preliminary inquiry was conducted before me, commencing April 11,2022. The Crown filed a s. 540(7) application and provided materials relating to the case. An exit pre-trial was conducted with me by counsel and on January 17, 2023, Mr. Piper pleaded guilty to a charge of manslaughter and a pre-sentence report was requested and ordered. An Agreed Statement of Facts was marked as Exhibit 1. Counsel also agreed that I could consider the material filed and evidence called at the preliminary inquiry in determining an appropriate, proportional sentence for Mr. Piper. Sentencing was adjourned on a number of occasions, as a result of Ms. Abraham advising the defence was awaiting a forensic psychiatric report respecting Mr. Piper. The final adjournment was to September 18, 2023, when counsel advised the psychiatric report was not available and sentencing would proceed in its absence.

3The Crown provided a Victim Impact Statement prepared by Alicia Tulk, marked as Exhibit 2. She read her VIS in court. A Pre-sentence Report was received in May 2023 and marked as Exhibit 3. The defence filed a “Lockdown Report” from Central East Correctional Centre, marked as Exhibit 4 and a series of emails relating to Mr. Piper’s involvement with CAS as a Crown Ward, was marked as Exhibit 5.

4After hearing submissions by counsel as to sentence I reserved until October 18, 2023 to provide my sentence for Mr. Piper. These are my reasons for sentence.

Factual Background

5Tristan Piper and Alicia Tulk were the biological parents of Liam Lincoln MacDonald-Piper, born December 07, 2018. At the time of Liam’s death he was just over four months old. Mr. Piper and Ms. Tulk were in a common law relationship and lived with Liam in an apartment at 316 Albert Street in Oshawa.

6Tristan Piper was caring for Liam while Ms. Tulk took her daughter to Niagara Falls to a water park over night on April 20, 2019, returning the evening of April 21, 2019. She spoke to Mr. Piper through the night of April 20 by video chat and observed Liam with Mr. Piper and he appeared to be fine. When Ms. Tulk arrived back home on the evening of April 21, 2019, she observed Liam to be sleeping but noted his breathing was unusual. When she tried to waken him at 3:30 or 4:00 a.m. to feed him, she was unable to waken him and he was unresponsive. She called 911 and EMS arrived and transported Liam to Lakeridge Health in Oshawa. CT imaging detected a traumatic brain injury, which included a right parietal skull fracture, subdural hemorrhage and cerebral edema. He was then transported to Toronto Hospital for Sick Children and was ultimately placed on life support. It was clear that Liam would not survive his injuries. He was taken off life support by the doctors on April 25, 2019 and died that same day.

7Mr. Piper told Ms. Tulk at the Hospital for Sick Children that he had dropped Liam when he was putting him in his swing and Liam hit is head on the frame of the swing. Mr. Piper was also interviewed by an officer with the Durham Regional Police Service and he provided the same explanation that when he was attempting to put Liam in his swing, he accidentally dropped him into the swing and Liam’s head struck part of the swing. Liam began to cry and he vomited but Mr. Piper consoled him and put him to bed. Mr. Piper said Liam seemed to be fine.

8On April 27, 2019, Dr. Magdeleni Bellis, a forensic pathologist, conducted an autopsy. Her final post-mortem report is dated August 20, 2020. Dr. Emma Cory is the Co-Director of the Suspected Child Abuse and Neglect (SCAN) Program at Toronto Hospital for Sick Children, her report is dated March 5, 2021. Mr. Piper provided an audio statement to police at the Toronto Hospital for Sick Children on April 21, 2019. It was in this statement that he told the officers that Liam had slipped when he was putting him in his swing and he hit his head on the swing. He was next interviewed by police on October 20, 2020, and provided a lengthy video-recorded statement where he advised the officer that he had struck Liam’s head on his knee out of anger, frustration and rage.

Injuries and Cause of Death

9The post-mortem determined the cause of death of Liam as “Blunt Force Head Trauma.” In the Summary and Opinion, Dr. Bellis describes the litany of injuries suffered by Liam that were discovered both during investigation into his condition while at Toronto Hospital for Sick Children and upon autopsy after his death.

10The following injuries were observed during Liam’s stay at Lakeridge Health and Toronto Sick Children’s Hospital:

• A bruise under his left eye
• A CT imaging detected a traumatic brain injury which included right parietal Skull fracture, subdural hemorrhage and cerebral edema.
• Extensive retinal hemorrhages
• Skeletal survey did not detect any new or healing fractures.

11On post-mortem examination Liam was found to be well-nourished and apparently developed without evidence of congenital abnormality or dysmorphic features. Growth parameters were within normal limits. Apart from the bruise under Liam’s left eye there were no other visible external injuries. These were the other findings on post-mortem:

• The anterior fontanelle was bulging upon palpation;
• Internal examination revealed an oblique right sided parietal skull fracture and a hairline transverse posterior (bilateral) skull fracture;
• The skull sutures were significantly separated and the underlying brain was diffusely swollen;
• A faint red area on the posterior parietal subscalp may have represented a bruise;
• There was diffuse subdural hemorrhage, spotty subarachnoid hemorrhage and visible optic nerve sheath hemorrhages;
• Neuropathological consultation revealed severe encephalopathy including hypoxicischemic changes and axonal injury in the brain and confirmed the retinal and ocular nerve sheath hemorrhages;
• Blood within the spinal cord was felt to be secondary to spread from intracranial bleeding;
• Macroscopically, hemmorhagic foci were visible on numerous ribs; no gross fractures were identified. Although an antemortem radiographic skeletal survey in hospital did not reveal any fractures, the postmortem CT scan showed multiple bilateral anterior and posterior non-displaced rib fractures;
• On histological examination, the skull fractures were acute and showed an inflammatory reaction dating them only at a few days in age. Similarly the anterior and posterior rib fractures were identified with features also placing them at a few days in age. Two healing posterior rib fractures (weeks in age) were also identified.

12Dr. Bellis determined the cause of death was blunt force trauma. Dr. Bellis found the skull fractures were caused by blunt impact, either from blows or falls, or a combination of the two. The fact there were two separate skull fractures in different locations indicated that there were two separate impacts. The two fractures could not be easily explained by a single fall and were found to be most in keeping with inflicted head trauma. Dr. Bellis referenced several studies on short falls where it had been shown that, with the exception of extraordinary circumstances, short falls rarely cause death. Mr. Piper by his guilty plea and his admission in the agreed statement of facts that “he intentionally applied force to Liam, causing all of the injuries discovered during the postmortem including the head injuries that caused his (Liam’s’) death” the possibility of an accidental fall, in my view, has been eliminated.

Tristan Piper’s Background and Character

13Tristan Piper will turn 28 on October 26. When Liam died he was 23 years old. He has no criminal record. He has three older half siblings (a sister and two brothers) from his mother’s previous relationship. Both of Mr. Piper’s parents are deceased and consequently, there is a lack of collateral contacts respecting his early family life and upbringing. Mr. Piper advised he was informed by his family at an early age that he is “developmentally delayed.” He was placed in foster care at the age of four because his parents had separated. His experience in foster care was “terrible.” He was in three separate foster homes and all were negative as he was abused verbally, physically and sexually while residing in these homes. He described returning to his home at the age of seven when his parents were together again. No corroborating evidence or information was provided in the PSR and it was not indicated whether efforts were made to obtain Children’s Aid records concerning this time period. Exhibit 5 were some Children’s Aid emails that were obtained by the defence.

14During the sentencing hearing the defence provided some information (Emails from a CAS worker involved with Tristan Piper, marked as Exhibit 5) concerning Mr. Piper’s time in foster care with the CAS. This began in December 1998, when Mr. Piper was living with his mother, his half-siblings were living with their father. Tristan’s mother had alcohol and drug issues, as well as mental health issues (PTSD and bi-polar). It was noted in his file that he had been exposed as a child to domestic violence when he was in the care of his mother and her different partners. Ultimately on January 22, 2001, Mr. Piper was made a Crown ward on consent. In March 2002, he was returned to his parents’ care as they had reunited. The CAS file was closed in April 2003. The CAS files confirmed Tristan Piper is developmentally delayed as he functioned 4-5 years below his chronological age. There are indications Mr. Piper was removed from his mother’s care in June 2009 (his sister took him in after his father’s death) and he returned to his mother in September 2009. Between 1997 and 2011 the CAS files indicated 8 occurrences involving Tristan’s mother.

15Mr. Piper told the probation officer he did not experience any physical abuse as a form of punishment by his parents. The family moved to Woodstock when he was seven because of employment. When he was 14 his father died from a work-related accident. This was difficult for Mr. Piper as he could not grieve his loss, as he had to be strong for his mother. Shortly after his father passed away, he and his mother moved to London where they lived until they moved to Oshawa in 2017, when his mother was dating a man in that city.

16When Mr. Piper moved to Oshawa he was 22 and he decided to create an online dating profile. He described having difficulty in building and maintaining friendships and relationships and he attributed this to his disability. This was how he met Alicia Tulk. They met in October 2017, and Ms. Tulk moved into Mr. Piper’s mother’s house in November 2017. She found out she was pregnant in March 2018. When they found this out they decided to move out on their own into an apartment. This was the first time Mr. Piper lived outside his mother’s home, other than when he was in foster care.

17Mr. Piper described his relationship with Ms. Tulk as very positive in the beginning. Their families seemed supportive of them. Ms. Tulk had a seven year old daughter. Mr. Piper’s mother passed away after he was arrested. The only family member he speaks to since his arrest is one of his brothers, as his other two siblings will not speak to him. He speaks with his brother once a month while he has been at Central East Detention Centre. The probation officer attempted to speak with this brother but was unsuccessful.

18Ms. Tulk told the probation officer she had decided to move out of her family home a month after she and Tristan met and he invited her to live with him in his mother’s house. Her daughter went to live with her father during that time. Ms. Tulk said her relationship with Tristan’s mom was good initially but this changed after she got pregnant and his mom became abusive towards her and would throw things at her. When they moved out of Tristan’s mom’s house Ms. Tulk’s daughter came to live with them in their apartment. Ms. Tulk told the probation officer her family viewed Mr. Piper as “strange” or “off” but he treated her well, which was why their relationship continued. Ms. Tulk described how she became aware that Tristan had limited experience with babies. She had to teach him everything – all the basics – after Liam was born. She felt she was constantly telling Tristan, “you can’t do that with a baby.” She ended her relationship with Tristan after Liam died and has not had any contact with him since then. Ms. Tulk found out a few days after Liam’s funeral that she was pregnant again and Mr. Piper was the father. This child, Lincoln, is now three and has never met Tristan.

19School was always a struggle for Mr. Piper and he was always placed in the developmentally challenged classroom throughout elementary and high school. He believed he passed his classes but could not recall his grades. He dropped out in Grade 12. He described being the victim of bullying both verbally and physically by his peers. This abuse was the reason for his dropping out. He described his only work experience was a summer job with a landscaping company owned by his extended family. When he was 19 his high school helped him get connected to the Ontario Disability Support Program (ODSP), which was his only source of income at the time of his arrest.

20Mr. Piper advised the probation officer that his brother has offered to assist him when he is ultimately released from custody. He wants counselling to assist him in dealing with the various losses he has experienced in his life. He described experiencing anxiety and depression, as well he described hearing voices while he has been in custody, although he denied hearing voices when he was with Ms. Tulk or caring for Liam. He advised he cannot make out what the voices are saying and denied they were making suggestions to harm others. He told the probation officer he is currently housed in the mental health unit at CECC. He told the author of the PSR he has had suicidal thoughts but has never acted on them.

Victim Impact Statement

21There can be no doubt the impact of Liam’s death was devastating to Alicia Tulk and it has had and will have for time a profound and long lasting effect on her. She attended the sentencing hearing at the beginning to read her Victim Impact Statement, which was marked as Exhibit 2. She described all that she lost as a result of Mr. Piper causing Liam’s death—for her family as a whole, the loss of her husband/provider and father for her kids, a sibling for her kids, her opportunity to be Liam’s mother for life, for Liam to be a big brother to Lincoln, for her to be part of Liam’s achievements, his graduations, getting married, having children of his own, all his firsts in life. She has lost all of those things. She described how difficult it was for her to make the decision to take Liam off life support. She expressed how she had thought she could not go on after his death and contemplated suicide but her faith caused her to hang on and have hope. Her description of all she has lost as a result of Mr. Piper’s actions and what Liam lost was insightful, heartbreaking and moving. She described the pain she has experienced and continues to experience. She poignantly conveyed Liam’s vulnerability and inability to defend himself given his young age.

22Ms. Tulk expressed that Mr. Piper should be held accountable for his actions yet she also said she has forgiven him because of her beliefs. She expressed her hope that Mr. Piper was remorseful and that he would ask for God’s forgiveness and come to faith so that his life could be transformed. My hope for Ms. Tulk and her family and friends is that they will be able to move forward with their lives, although I recognize the incredible impact and loss Mr. Piper’s criminal conduct has caused.

Position of the Parties

23The Crown is seeking a ten year penitentiary sentence less the pre-sentence custody he has served. It was the Crown’s position that the serious aggravating circumstances present in this case call for a 10 year penitentiary sentence, which would reflect the seriousness and gravity of Mr. Piper’s offence and his high moral culpability. The Crown submitted that the objectives of deterrence and denunciation are mandated by the Criminal Code to be given primary consideration.

24The defence is seeking a seven year penitentiary sentence less pre-sentence custody. The defence provided the lockdown report from CECC, although counsel did not provide an affidavit from Mr. Piper describing how being incarcerated during COVID impacted him or whether the conditions he experienced during the many lockdowns affected him in any way while he has been detained in custody. It was agreed by counsel that as of today’s date Mr. Piper has been in custody 847 real days. According to Exhibit 4, the letter from Florentino Sanya, Manager, Security & Investigations, SOLGEN, CECC, Mr. Piper has been subject to lockdowns in his unit on 218 days. The defence submitted this is a mitigating collateral consequence that should be considered when determining a proportionate sentence.

25Both counsel provided extensive casebooks involving other manslaughter cases involving the death of a child by someone in a position of trust. Both counsel focussed their submissions surrounding the mitigating and aggravating circumstances involved on the facts of this case.

Determining the Appropriate Sentence

The Applicable Principles of Sentencing

26The purpose of sentencing is set out in sections 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases. I will preface what these sections set out by indicating that in Canada revenge or vengeance is not an appropriate sentencing principle. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victims and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit and proportionate sentence in the circumstances of the case. This is our tradition in Canada, a tradition which has a long and respected history both in Canada and other free and democratic societies throughout the world.

27Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct; (b) Deter the offender, and others, from committing such an offence; (c) Separate the offender from society, where necessary; (d) Assist in the rehabilitation of the offender; (e) Provide reparation for harm done to “victims”, or the community; and (f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

28The "fundamental principle" of sentencing pursuant s. 718.1 of the Criminal Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak [1], the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

42For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

29As Rosenberg J.A. held in R. v. Priest [2]:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

30Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

31Under s. 718.01 the Criminal Code mandates that where the offence involves the abuse of a person under eighteen years, the sentencing court shall give primary consideration to the objectives of denunciation and deterrence. Further, s. 718.04 mandates that where a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances, deterrence and denunciation must be given primary consideration in the determination of a proportionate sentence.

32The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. [3] Retribution, which is different from vengeance, requires that an appropriate and fit sentence properly reflect the moral blameworthiness of that offender. [4] As indicated by Chief Justice Lamer in R. v. M. (C.A.):

Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. [5]

33While the sentencing principles of denunciation and deterrence are to be given primary consideration under ss. 718.01 and 718.04, this should not exclude consideration of rehabilitation and restraint, [6] particularly in the case of an offender, who will receive a first custodial sentence and in particular, a first penitentiary sentence. In R. v. Borde, [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflected serious charges and sentences. Here Mr. Piper is a youthful first-time offender, who has never been in trouble with the criminal justice system previously; however, in the circumstances of this case both counsel agree there must be a significant jail sentence in the penitentiary, albeit, defence counsel have submitted what could be described as the lowest end of the appropriate range set out in the caselaw and the Crown has submitted the upper end of that range. [7]

34I was provided many cases by the defence and Crown, all of which I have carefully reviewed. In my view it would serve little purpose for me to set out the various cases provided in detail as the sentence imposed in a given case is determined by the particular facts and circumstances present in that case. It is important to note as well that sentencing is not an exact science and no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.) [8]:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

35The Supreme Court in R. v. Lacasse, has held “the determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation.” [9]

36Consequently, a proportionate sentence in each case, in large measure, is determined by the specific and unique facts and circumstances surrounding the offender and the commission of the offence. Although precedents involving similar cases can provide guidance in determining a proportionate sentence they should not dominate the sentencing process. In R. v. Rawn, the Ontario Court of Appeal cautioned that: [10]

36It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.

37It is my view the cases provided by counsel establish that the range of sentence for manslaughter of a young child by a parent or guardian or someone in a position of trust towards that child are in the range of six to twelve years. [11]

Caselaw Provided by Crown and Defence

38As a starting point I want to echo my colleague, Justice P.A. Downes comments in R. v. Bouffard [12], where he indicated:

Serious crimes of violence against defenceless children will always attract a strong denunciatory sentence. 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.

39Mr. Piper pleaded guilty to the offence of manslaughter, where the maximum sentence is life imprisonment, which makes it one of the most serious offences in the Criminal Code. Manslaughter can be committed by a wide range of conduct, from conduct approaching accidental injury to conduct approaching the mens rea for murder, which results in a wide range of sentences; however, as I have already indicated above, it is my view the appropriate range of sentence in the case of a parent or caregiver who causes the death of a vulnerable child is from six to twelve years in the penitentiary. It is my view the low end of this range involves cases where there exists unique or exceptional circumstances surrounding the conduct of the parent who caused their child’s death. The upper end of the range in my view reflects cases where the circumstances surrounding the abuse of the child by a parent or caregiver took place over an extended period of time as opposed to an “impulsive act.” A further circumstance that often results in sentences at the top of the range is when the accused is found guilty after a trial and no mitigation is available from a guilty plea.

40The Crown provided a number of cases involving parents or caregivers charged with manslaughter in the death of a child. In R. v. Alexander [13], the sentence was 11 years after a trial for manslaughter where the child was seriously burned accidentally but his mother did not seek medical assistance for an extended period of time in order to protect herself, which delay was found to have caused the child’s death. In R. v. Jha [14], a sentence of 10 years was imposed after a trial where the child died of a massive brain injury as a result of blunt force trauma to the skull, as well as multiple other internal and external injuries including bruising, hemorrhaging and skull fractures. In that case the trial judge found there were multiple assaults of the child prior to the incident that led to the child’s death. A further case provided by the Crown was the case of R. v. France [15]. In this case the live-in boyfriend of the 2 year old’s mother pleaded guilty to manslaughter involving the child. He had engaged in physically disciplining the child, causing injuries to the child’s face, ears, neck, back, arms and legs. He was kept home for two weeks to hide his injuries. Prior to his death the child suffered blunt force trauma to his abdomen causing an intestinal rupture. No attempts were made to obtain medical assistance for the child and he ultimately died of sepsis. The Crown sought a ten year sentence and the defence sought a sentence of four to six years. Justice Molloy imposed a nine year sentence despite not being able to be satisfied beyond a reasonable doubt that Mr. France had delivered the fatal blow. She did find that he very easily could have obtained medical assistance for the child and had he the injury would not have caused his death. It is my view the factual circumstances of this case are more serious and vastly different from Mr. Piper’s case.

41The defence provided two sentencing cases where the sentence imposed for manslaughter involving a child were joint submissions for six years. [16] A further case where a six year sentence was imposed for the mother of a 34-month old daughter who lost her temper and struck her daughter a single time leaving her on a couch unaware of the extent of the injuries she had caused. When the mother found her daughter in distress she called 911. [17] It is my view cases where there is a joint submission are not of assistance in determining what a fit and proportionate sentence should be for Mr. Piper and the facts in the third case in my view are distinguishable in terms of the conduct described from Mr. Piper’s conduct to his son.

42Both counsel provided me with Justice Downes’ case in Bouffard where he imposed an eight year sentence. In that case the Crown sought an eight year sentence and the defence submitted a five to six year sentence was appropriate. In my view there were very similar factual circumstances in Bouffard to those in Mr. Piper’s case. Mr. Bouffard was caring for his newborn daughter as his wife had developed complications and infection in her incision from the birth. While his wife slept Mr. Bouffard cared for his daughter and he assaulted by shaking and squeezing her violently, he broke six of her ribs and one of her thoracic vertebrae, caused bruises to her back and face and head. While carrying her to the kitchen to get a drink he dropped her onto the kitchen floor fracturing her skull. He did nothing to help her, he did not tell his wife or seek medical attention for his daughter. Instead he put her into her bassinette and then went to sleep. Five hours later when he and his wife attempted to wake their daughter she was unresponsive and 911 was called. She was brought to Toronto Sick Children’s Hospital where her injuries were identified – fractured skull, severe brain injury and multiple rib fractures. She died two days later after doctors removed her life support. It was Justice Downes position that the defence position did not adequately address the denunciatory principle. It was the Crown’s submission the eight year sentence appropriately accounted for the mitigating circumstances of Mr. Bouffard’s guilty plea and youthful age and lack of a criminal record. Justice Downes agreed.

43The defence also provided me with R. v. Gregoire [18] where a father had lost his temper with his 53 day old son and had shaken and struck him causing fatal injuries. The Court of Appeal upheld the eight year sentence imposed less pre-sentence custody. The Court found the sentencing judge took into account the mitigating effect of the guilty plea, but was entitled to take into account Mr. Gregoire initially misled medical personnel about the cause of his son’s distress by claiming he had choked on food, when he knew his son had suffered a head injury. The sentencing judge was entitled to rely on Mr. Gregoire’s failure to explain his son had suffered a head injury to assist in determining the gravity of the offence and the degree of Mr. Gregoire’s responsibility. Mr. Gregoire’s breach of trust in preferring his own interests to those of his child when his son was in medical need were relevant to both considerations. Again, although the facts are not identical to Mr. Piper’s case they are similar. The defence also provided the case of R. v. Summers [19], where a father was sentenced to eight years where after caring for his son one day when the child’s mother and her father, the grandfather, picked him up and they noticed abnormal symptoms. They brought him to hospital where it was determined he had severe head injuries which indicated shaken baby syndrome. An eight year sentence was imposed less pre-sentence custody. Both counsel had submitted the appropriate sentence was eight to ten years.

Analysis of Mitigating and Aggravating Circumstances

44Tristan Piper in the Agreed Statement of Facts (ASF) admitted he intentionally applied force to Liam, which caused all the injuries discovered during the postmortem examination, including the skull fractures that caused his death. This admission is contrary to Mr. Piper’s initial explanation of how the injuries discovered at Lakeridge Health and at Toronto Hospital for Sick Children had occurred. The experts opined that Liam’s injuries were not caused by a small fall as a result of Mr. Piper accidentally dropping him into the swing causing his head to strike part of the swing. Mr. Piper ultimately acknowledged in his police statement that he struck Liam’s head off “both sides of [his] knee” as he was feeling anger, frustration, and rage when he did this – “not once” but “repetitively on [his] knee.” He admitted in his police statement and in the ASF that he did this “within that rage moment, mental health weakness, whatever you wanna call it.”

45In my view these admissions increase Mr. Piper’s moral blameworthiness for this offence and its consequences. He was in a position of trust as Liam’s father and sole caregiver at the time these injuries were inflicted. On the agreed facts Tristan Piper admitted he failed, as Justice Downes observed in Bouffard [20], “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.” It is my view this is a serious aggravating circumstance in this case, which increases Mr. Piper’s moral blameworthiness. This was recognized recently by the Supreme Court in R. v. Friesen [21], 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…. The abuse of a position of trust also exploits children's particular vulnerability to trusted adults, which is especially morally blameworthy…

46After intentionally applying force in the manner he described, Mr. Piper did not seek medical attention for Liam, he did not call Ms. Tulk to advise her what had occurred and he did not advise her when she first arrived back in the apartment with her daughter from their trip, as to what he had done earlier in the evening before he put Liam into his crib. In his police statement he had described Liam crying afterwards and then said Liam had vomited. Instead of offering assistance to Liam he left him in his crib, led Ms. Tulk to believe everything was okay and it was not until several hours later when she tried to feed Liam in the early morning hours that she discovered Liam was unresponsive. In my view this is also a serious aggravating circumstance to be considered.

47A further aggravating circumstance is the impact Mr. Piper’s criminal conduct had on Liam, the injuries inflicted by Mr. Piper were extremely serious causing subdural hemorrhage and cerebral edema as a result of the two skull fractures he caused. This refers to bleeding within the brain causing swelling between the brain and skull. The fontanelle or soft spots on Liam’s skull were bulging upon palpitation. There were extensive retinal hemorrhages. All of the injuries described in the postmortem report would have caused Liam significant pain and suffering. Alicia Tulk’s pain and suffering is palpable from her description of discovering Liam unresponsive when she tried to wake him to feed him and then learning at the hospital of the serious injuries he suffered at the hands of Mr. Piper, when he was solely responsible for caring and providing for Liam’s well-being. Ms. Tulk has referred to the tremendous continuing impact Liam’s death has on her in her VIS. It is my view pursuant to s. 718.2 (a)(iii.1) these circumstances are also statutorily aggravating.

48Mr. Piper abused Liam, who was only four months old, a child who at that age was completely defenceless and vulnerable. Mr. Piper was Liam’s father and Liam’s sole caregiver when Liam was abused and Mr. Piper was in a position of trust in relation to Liam. These are statutorily mandated aggravating circumstances under s. 718.2 (a) (ii.1), (ii) and (iii).

49The defence focused on Mr. Piper’s developmental disability as perhaps reducing his moral blameworthiness. Mr. Balka submitted Mr. Piper was not a very experienced parent and that Mr. Piper ought not to have been put in the position of being Liam’s sole caregiver. Ms. Tulk did make reference in her discussion with the probation officer that she learned after Liam was born Mr. Piper had very limited experience with babies and she had to teach him the basics – how to change a diaper or how to hold a baby. She was constantly telling him that he could not do what he was doing with a baby, although there was no description as to what Mr. Piper was doing when she said this to him. My difficulty with this submission by Mr. Balka is that no explanation or details were provided by Mr. Piper other than his statement where he described striking Liam’s head against his knee, not just once but repetitively and this occurred because he was feeling anger, frustration and rage at the time. He said it occurred within a rage moment, mental health weakness, whatever you want to call it because people call it different things. His description implies he knew what he did to his baby boy. He then made a choice after he caused him to cry and vomit to just put him to bed. He was solely responsible for multiple injuries to Liam’s head which were a significant contributing cause of his death. He made a choice not to seek any medical attention for Liam. He further made a choice to not tell Ms. Tulk what he had done and many hours later, when Liam would not wake up and was unresponsive he initially made up a story to protect himself from the consequences of what he had done. It is my view all of these circumstances increase Mr. Piper’s moral blameworthiness and responsibility for his conduct toward Liam. These circumstances further demonstrate that Mr. Piper was fully aware of the harm he had caused Liam.

50There are mitigating circumstances present in Mr. Piper’s case. Before addressing the mitigating circumstances some background addressing the delay from the end of the preliminary hearing to the guilty plea and then the further delay to when counsel’s sentencing submissions were heard are in order. I presided over the preliminary hearing respecting Mr. Piper’s charge of second degree murder commencing on April 11, 2022 for approximately two weeks. At the conclusion of the preliminary hearing I conducted an exit pre-trial where discussions concerning the possibility of a guilty plea to the lesser offence of manslaughter was raised. The matter was adjourned on a number of occasions over an extended period during which counsel were engaged in continuing discussions. On January 17, 2023, Tristan Piper pleaded guilty before me on a new Information charging the offence of manslaughter and I ordered a Presentence Report. Sentencing was adjourned to May 26, 2023. The sentencing was adjourned further on a number of occasions at the request of the defence because a forensic psychiatric report was not yet completed. These adjournments, with a waiver of s. 11(b) on each occasion, continued until the last scheduled date, September 18, 2023, when the defence advised a few days prior that the sentencing hearing would proceed but there would not be any psychiatric report filed. I mention all of this to explain the passage of time from the end of the preliminary hearing and Mr. Piper’s guilty plea, the eventual sentencing hearing and my sentence imposed today.

51I view Mr. Piper’s guilty plea as genuine and sincere and it reflects his remorse for his conduct, which caused he and Ms. Tulk’s son’s death. It also demonstrates on his part acceptance of responsibility for that criminal conduct. I will indicate, as well, I watched his videotaped statement to the police in 2020, in October. It was my view, from that, that there was remorse on Mr. Piper’s part, for the conduct he engaged in back in April 2019. What he had done, obviously, could not be undone. It is something that is permanent and forever. I also recognize Mr. Piper’s guilty plea saved the expense of a protracted trial and further relieved Ms. Tulk from having to testify at the trial and hopefully has brought about some finality in terms of the trial process for her and other family members and friends. Tristan Piper is a youthful first offender who has not been in conflict with the law previously. These are all mitigating circumstances I must take into account in determining a proportionate sentence for his conduct and its devastating consequences.

52I take into account the circumstances surrounding Mr. Piper’s pre-sentence custody, which he served during the COVID pandemic and the resulting lockdowns that occurred during his incarceration. The caselaw has developed respecting what is now referred to as “Duncan” [22] credit as being one of the factors to be taken into account in determining the appropriate sentence. The Ontario Court of Appeal has recently held: [23]

The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

53Usually when there is a submission concerning particularly difficult and harsh pre-sentence custody conditions the defence provides an affidavit from the accused describing how the lockdowns or the health risks created by COVID specifically impacted them. I did not receive an affidavit from Mr. Piper. It is important to distinguish between “Duncan” credit and “Summers” [24] credit. As the Court of Appeal held in “Marshall”, “It must be born in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody.” [25]

54The delays from the end of the preliminary hearing to my imposing sentence today is, in my view, unfortunate because closure of these proceedings could have occurred much earlier. Unfortunately I am not privy to the initial discussions between counsel prior to the plea being entered and while I supported the defence requesting further adjournments to allow for the forensic psychiatric report to be completed, it was not ultimately forthcoming. I draw no adverse inference from the lack of a forensic psychiatric report; however, its absence has left a hole or gap as to an explanation for why this tragedy occurred. The defence has attempted to suggest that Mr. Piper’s mental health issues, the fact he is “developmentally delayed,” somehow reduces his responsibility for his conduct towards Liam. If a forensic psychiatric report had been filed, it might very well have provided some explanation for Mr. Piper’s conduct; however, it is my view it would in no way reduce what I have found to be his high level of moral blameworthiness for his conduct that caused Liam’s death. The fact is, there is no report and no evidence of what exactly Mr. Piper’s mental health issues are or how they impact his conduct. The facts admitted clearly demonstrate Mr. Piper fully appreciated the wrongfulness of his conduct towards his defenceless and vulnerable child. It occurred because of Mr. Piper’s anger, frustration and rage towards Liam and his striking Liam’s head against his knee repeatedly. Further, his initial attempt to explain Liam’s condition as being the result of an accidental fall when he was putting Liam into his swing to provide an innocent explanation demonstrates his being completely aware of the inappropriateness of his conduct. This coupled with his failure to seek medical assistance or advise Ms. Tulk of what he has admitted he did further demonstrates his high degree of responsibility and moral culpability.

55In all of the circumstances of this case it is my view that a sentence of nine years in the penitentiary appropriately addresses the denunciatory principle. It is further my view that such a sentence fully takes into account all of the mitigating circumstances I have set out above but also reflects Mr. Piper’s high moral blameworthiness given the serious aggravating circumstances I have identified and the gravity of the offence he committed. If Mr. Piper had been convicted after a trial I have little doubt he would have faced a double digit penitentiary sentence.

56Mr. Piper has been in pre-sentence custody for 847 days and he will receive credit for his pre-sentence custody on a 1.5 to 1 basis of 1271 days, pursuant to s. 719(3.1) of the Criminal Code and R. v. Summers [26]. Mr. Balka sought in addition to the Summers credit a further credit pursuant to Duncan. As I indicated previously, the defence did not provide an affidavit from Mr. Piper, which addressed the conditions experienced by him during the lockdowns, as well as what impact it had on him. Some cases have held that where there is no evidence of what the harsh conditions experienced were, no enhanced credit should be given. It is worth noting that Mr. Piper was subject to lockdowns because of staff shortages, COVID outbreaks and droplet precautions 25% of his time in pre-sentence custody.

57Let me indicate first there is no rigid or mathematical formula to be given by a sentencing judge for enhanced credit. Second, the Ontario Court of Appeal has indicated in several recent decisions a concern as to what circumstances will justify enhanced credit. In R. v. Gregoire, Paciocco J. held the sentencing judge did not err in determining not to give enhanced credit to the accused because of the number of days he spent in lockdown and in overcrowded cells. Mr. Gregoire received pre-sentence credit of two years and two months, which reduced the eight year sentence for manslaughter to five years and ten months. Miller J. wrote a concurring judgment expressing that further guidance by the Court of Appeal was needed as to what circumstances may justify enhanced credit. He indicated this may require an explanation of the doctrinal foundation for the practice of granting enhanced credit outside of s. 719(3.1) considering the decision in R. v. Summers.

58Finally the Court of Appeal in Marshall [27], held that:

“Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

59Suffice it to say, in determining what I believe the appropriate proportionate sentence for Mr. Piper’s conduct that properly addresses the gravity of the offence and his degree of moral blameworthiness, I have considered and taken into account the fact that he spent 25% of his pre-sentence custody in lockdowns. Even without an affidavit setting out the actual hardships and impacts this caused him, I am of the view this circumstance is unacceptable and should not have occurred. However, to further reduce the nine year sentence I have determined is a proportionate sentence, one that gives primary consideration to the objectives of denunciation and deterrence and has considered and applied the principles of rehabilitation and restraint having regard to the fact Mr. Piper is a youthful first offender who has never been to jail, would in my view cause this sentence to be inappropriate. The Crown’s position of 10 years in my view does not adequately take into account the mitigating circumstances present in Mr. Piper’s case, although as I have indicated this would very likely have been imposed after a trial without the mitigation of his guilty plea.

60The tragedy of Liam’s death can in no way be remedied by any sentence imposed on Mr. Piper. His actions towards Liam were inexcusable and abhorrent and frankly, shocking. He will have to live the rest of his life knowing he was solely responsible for Liam’s death, he allowed his anger, his frustration and his rage to take over causing him to physically assault his son, resulting in the serious injuries that ended his life.

61Consequently, the 9 year penitentiary sentence I am imposing is only reduced by the 1271 days (3 years and 176 days) of “Summers” credit, leaving a remaining sentence to be served of 5 years and 189 days.

62In addition I will make the following ancillary orders: A s. 109 weapons prohibition order for life. Manslaughter is a primary designated offence and s. 487.05(1) mandates Mr. Piper provide a sample of his DNA, which will be taken from him by 5 pm October 18, 2023.