R. v. H.A., 2025 ONCJ 605

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(2.1) 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) to (3), read as follows:

486.4 (2.1) Victim under 18-other offences- Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) Mandatory Order on Application — In proceedings in respect of an offence, other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. H.A., 2025 ONCJ 605

DATE: 2025 11 10

COURT FILE No.: Hamilton 24-47100254

BETWEEN:

HIS MAJESTY THE KING

— AND —

H.A.

Before Justice J.P.P. Fiorucci

Heard on February 13 and May 7, 2025

Reasons for Sentence released on November 10, 2025

Morgan Ross....................................................................................... counsel for the Crown

Tariq Khan........................................................................... counsel for the defendant, H.A.

FIORUCCI J.:

Overview

1For almost two years, the defendant, H.A., repeatedly assaulted her two young sons. The assaults were captured on a video camera installed in the living room of the family home. They included the use of weapons such as a couch, a plate and a thermos on the younger boy.

2H.A. entered guilty pleas to nine offences: three assaults with a weapon and six assaults. However, she admitted that there were 54 videos of her assaulting the children in various ways. In March of 2022, when H.A.’s husband, the father of the children, reported the assaults to police, the boys were 9 and 5 years old. H.A. is being sentenced for a prolonged period of abuse of her young children.

3The Crown seeks a penitentiary sentence of 3 years and ancillary orders. The defence says that a jail sentence of less than two years is appropriate, and that H.A. should be permitted to serve her jail sentence in the community on a conditional sentence of imprisonment (CSO).

4These reasons explain why I impose a CSO of two years less one day followed by two years of probation.

Circumstances of the Offences

5Between July 26, 2020 and February 24, 2022, H.A. committed multiple assaults against her two sons, A.Z. and Z.Z.¹ The assaults occurred within the family residence. The offences came to the attention of the authorities on March 18, 2022, when the children’s father, S.Z., contacted the Hamilton Police Service expressing serious concerns for the safety of the children.

6S.Z. had initially learned from the children that H.A. was using physical discipline. After reporting the matter to the children’s school, the Children’s Aid Society of Hamilton attended the home but received no disclosures from the children. Following this visit, H.A. threatened self-harm in the presence of the family.

7S.Z. subsequently reviewed footage from a previously installed video camera in the living room and discovered multiple recordings of H.A. physically assaulting the children. He immediately reported the matter to police and provided the video evidence.

8A search warrant was obtained, and investigators reviewed approximately two years of footage, identifying 54 separate incidents of physical abuse. The assaults included slapping, hitting, shaking, kicking, pushing, and throwing the children. There were instances where weapons such as a plate, a thermos, and a couch were used.

9The following is a summary of the facts pertaining to the nine offences to which H.A. entered guilty pleas:

Count #13: July 26, 2020: H.A. and Z.Z. were on a living room couch while she spoon-fed him. H.A. stood up from the couch, grabbed Z.Z. by the back of his shirt and threw him off the couch. He landed on his behind. Z.Z. followed H.A. in the kitchen where she forcefully washed his hands. Z.Z. grasped his right elbow as a result of his arm being overextended at the sink.

Count #11: August 7, 2020: H.A. was feeding Z.Z. while the two of them were sitting on the living room couch. With her left hand, H.A. delivered an open-palm strike to the left side of Z.Z.’s head. Shortly thereafter, H.A. stood up from the couch, grabbed Z.Z. from the back of his shirt and delivered two additional open palm strikes to his back as he fell off the couch. H.A. slapped him once more on the back before picking him up off the ground by his shirt and dropping him onto the ground. He landed on his buttocks. Z.Z. cried throughout the interaction.

Count #10: August 26, 2020: H.A. forcefully fed Z.Z., while he cried at the table. She is then observed to push him in his chair which rocks side-to-side before he falls off and onto the floor. Z.Z. got up and ran from the dining room table. H.A. followed him, led him back to the dining room table, and continued to force-feed him.

Count #9: September 15, 2020: H.A. struck Z.Z. on his left shoulder with a metal thermos that she retrieved from the pantry, causing Z.Z. to clutch his shoulder and retreat away from the pantry crying.

Count #8: October 5, 2020: H.A. struck Z.Z. with her right hand on his back while he was standing on a dining room chair. Moments later, she struck A.Z. with her right hand.

Count #4: July 25, 2021: Z.Z. was attempting to avoid his brother by running around the kitchen island. H.A. used her left hand to grab Z.Z. by his left shoulder/upper arm. She then used her right hand to throw Z.Z. to the ground, causing him to hit his chin on the tile floor. H.A. tended to Z.Z. momentarily before running to A.Z. and delivering two strikes to his upper back using open palms. H.A. then returned to Z.Z., grabbing him by the right forearm and throwing him into the living room area. She then delivered an open-handed strike to A.Z. using her left hand.

Count #3: August 29, 2021: Z.Z. accidentally knocked a plate off the kitchen island. H.A. picked the food up off the floor and then used the plate to hit Z.Z. on the top of his head. Z.Z. cried and held the top of his head. H.A. consoled him by picking him up and rubbing his head while he cried.

Count #1: February 24, 2022: H.A. grabbed Z.Z.’s hair and shook him by the head three times, which caused Z.Z. to cry and grab the top of his head in pain. H.A. then chased Z.Z. around the kitchen and living room, moving furniture to block his path of escape. She pushed the couch against him which caused Z.Z. to cry and grasp his right leg/knee.

Count #2: February 24, 2022: After striking Z.Z. with the couch, H.A. approached A.Z., who had been seated at the dining room table throughout the interaction between her and Z.Z. H.A. slapped A.Z. twice on the head and back with each hand. A.Z. returned to the dining room table touching his back.

Impact on the Victims

10S.Z. and the two boys provided victim impact statements. S.Z. struggles to support the boys through their sadness. He reports that the children have been in trauma counselling for the past two years. S.Z. acknowledges that the boys miss their mother. He struggles emotionally as he watches his children deal with the changes in the home with their mother being gone. S.Z. says that A.Z. has a hard time when people at school functions ask him where his mother is, and Z.Z. cries and expresses his thoughts and worries at bedtime.

11In his victim impact statement, A.Z. says the situation has impacted him emotionally. He says he is bullied a lot at school for not having his mother at functions and activities. A.Z. also feels like they are being judged by their relatives for not having their mother. He speaks of how his grades slipped and his social life was affected. A.Z. speaks of missing his mother, her meals, their bonding time and watching movies and playing board games with her.

12Z.Z. says he feels nervous and sad. He speaks of how he was nervous when there was fighting, but also misses his mom because she is gone. He drew a picture of the family in his victim impact statement, including himself, his brother and both his parents.

Circumstances of the Offender

13H.A. is a 44-year-old Canadian citizen who immigrated to Canada from Pakistan in 2011 following an abusive marriage that resulted in her hospitalization. She arrived on a visitor’s visa and later obtained refugee status, becoming a Canadian citizen in 2016. She is the eldest of four siblings and maintains contact with her family, who reside in Pakistan, the United Kingdom, and the United States. She described her childhood as “normal,” though she recalled instances of maternal violence when she or her siblings refused to eat, suggesting early exposure to problematic parenting practices.

14H.A. has three children: an adult daughter from her first marriage and her two younger sons from her second marriage to S.Z., who are the victims of these offences. In 2022, H.A. lost access to the victims in the present offences. Initially, she had supervised visitation, but this ceased after she missed several weeks due to work obligations. Child welfare records indicate concerns about her lack of cooperation and failure to appreciate the seriousness of her actions. Any future access to her children will require supervised visitation and further assessment.

15H.A. has a longstanding history of mental health challenges, including major depressive disorder diagnosed in 2013 and bipolar disorder diagnosed in 2024. She has experienced postpartum depression and has been intermittently compliant with psychiatric treatment over the years. Her medical records indicate multiple consultations with psychiatrists and general practitioners, and she has been prescribed medications such as Cipralex and Nortriptyline. She has also been referred for mental health assessments and has participated in psychotherapy sessions.

16In 2023, H.A. completed a personal support worker certificate through a professional college in Brampton, funded by a provincial initiative. She briefly worked in retirement homes and a coffee shop but lost employment due to the pending charges. She is currently unemployed and reliant on social assistance, though she continues to seek work and expresses a strong desire to re-enter the workforce.

17Because of extreme financial difficulties, since February 2025, she has been residing at a transitional shelter operated by Sakeenah Canada, where she has actively participated in various educational and wellness programs, including parenting workshops, financial literacy, and anger management. H.A. has consistently attended therapy and counselling sessions and is described by her caseworkers as cooperative, motivated, and committed to personal growth.

18Between November and December 2022, H.A. participated in and successfully completed a “Women’s Approach to Anger Management Program” at the Hamilton Urban Core Community Health Centre. On August 17, 2023, H.A. completed a three-session virtual parenting education program titled “Building Your Parenting Toolkit” through McMaster Children’s Hospital. She has also completed a Ministry of Labour worker health and safety awareness training module for which she was issued a certificate on August 25, 2023.

19H.A. has no prior criminal record and no known history of substance abuse. She has complied with her bail conditions and has demonstrated appropriate behaviour during her interactions with probation services. She describes herself as timid and lacking confidence, but also as someone who enjoys helping others. Letters of support from friends and community members describe her as kind, generous, and caring.

20Dr. Farrukh Akhtar, a psychiatrist, provided a letter dated December 20, 2024, detailing H.A.’s progress with treatment and psychotherapy. Dr. Akhtar sets out in this letter that H.A. came to him with complaints of restlessness, irritability, frustration, thoughts of suicide, and a history of childhood trauma. Dr. Akhtar diagnosed H.A. as suffering from bipolar disorder. Treatment from April 20 to December 20, 2024 included medications and psychotherapy sessions daily. In Dr. Akhtar’s opinion, the medications and therapy sessions played a very crucial role in emotional healing and H.A. gradually gaining more control over her anger.

21Dr. Naila Furqan, H.A.’s family physician, provided letters dated August 1 and September 4, 2025, which state that H.A. has been compliant in taking her antidepressant medications which has controlled her depression and anxiety symptoms and stabilized her mood.

Positions of the Parties

22The Crown seeks a global 3-year jail sentence, a DNA order, a section 110 Criminal Code weapons prohibition order for 10 years and a section 743.21 order prohibiting H.A. from contacting or communicating with the child victims while serving her jail sentence. The Crown says that a jail sentence of this duration is necessary to satisfy the primary principles of denunciation and deterrence applicable to child abuse cases.

23The defence says that a sentence of less than two years is appropriate and that permitting H.A. to serve her sentence in the community on a CSO would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. The defence does not dispute the appropriateness of the DNA and weapons prohibition orders.

General Principles

24The principal purpose of the criminal law, and in particular sentencing, is the protection of society.² This is reflected in the sentencing provisions in Part XXIII of the Criminal Code. Section 718 says that the fundamental purpose of sentencing is to protect society, and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society. These goals are to be achieved by imposing just sanctions. Those just sanctions are to have one or more of the following objectives:

(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;

(c) to separate offenders from society, where necessary;

(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.

25In R. v. Nasogaluak, the Supreme Court of Canada (SCC) observed that the objectives of sentencing are given sharper focus in s. 718.1 by the fundamental principle of proportionality, which mandates that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender".³ In R. v. Lacasse, the SCC described proportionality as the cardinal principle of sentencing; “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be”.⁴

26Individualization is central to the proportionality assessment.⁵ As Chief Justice Wagner wrote in Parranto “[w]hereas the gravity of a particular offence may be relatively constant, each offence is ‘committed in unique circumstances by an offender with a unique profile’”.⁶

27Section 718.2(b) states that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity.

28The principles of individualization and parity, while important, are secondary principles.⁷ Chief Justice Lamer, writing for the SCC, in R. v. M.(C.A.), said this:

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime… Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.⁸

29In Parranto, Chief Justice Wagner said that “parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence”.⁹ He went on to say:

Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must "calibrate the demands of proportionality by reference to the sentences imposed in other cases".¹⁰

30In R. v. Friesen,¹¹ the SCC emphasized that children are the future of our country and are also among the most vulnerable members of our society. Section 718.01 of the Criminal Code instructs that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

31The principle of restraint is contained in ss. 718.2(d) and (e) of the Criminal Code mandating that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Aggravating and Mitigating Circumstances

32Section 718.2(a) of the Criminal Code instructs that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

Aggravating Circumstances

33I have identified the following aggravating circumstances. First, dealing with the statutorily aggravating factors. H.A. abused her two biological sons, members of her immediate family: s. 718.2(a)(ii). When she committed these offences, between 2020 and 2022, the children were very young: s. 718.2(a)(ii.1). H.A., in committing the offences, abused a position of trust or authority in relation to both victims. The breach of trust was a significant one given the mother-son relationship: s. 718.2(iii).

34Section 718.2(a)(iii.1) deems it aggravating that an offence had significant impact on the victim considering their age and personal circumstances. The offences in this case profoundly impacted H.A.’s sons as evidenced by their victim impact statements and the statement filed by their father. While the children’s victim impact statements provide limited details about the effects of the ongoing abuse at the hands of their mother, the emotional and psychological effects on the victims are apparent in the statements.

35Like the circumstances in R. v. R.H.,¹² H.A.’s offences encompass a pattern of assaultive conduct. The duration and frequency of the assaults H.A. committed against both of her sons is an aggravating circumstance.¹³ She committed the offences over a period of approximately two years and used weapons to commit some of the offences. The videos which have been made Exhibit 3 on the sentencing hearing are troubling to watch. They depict H.A. abusing her defenceless children. In the videos, the children often cower from H.A. in fear. The youngest, Z.Z., is often seen crying and trying to escape from H.A.

36Defence counsel repeatedly suggested that the assaults perpetrated by H.A. were the result of her attempts to force feed her children which was coming from a place of nurturing and could be explained by her own experiences as a child. There were perhaps some incidents which involved the children interacting with food in or around the time that H.A. assaulted them but for the most part the assaults are properly characterized as H.A. striking the victims, sometimes with weapons, out of anger and frustration. Like the offender in R.H., H.A.’s conduct could not be said to be excessive discipline, and it is difficult to accept defence counsel’s submission that H.A. was a nurturing parent when she physically abused the children in the fashion depicted in the videos.

Mitigating Circumstances

37There are several mitigating circumstances. H.A. entered guilty pleas to the offences. She accepted responsibility for her actions and expressed remorse. She spared the victims and any other witnesses the emotional toll of a trial. The judicial resources necessary for the trial were preserved and can be committed to other matters in a busy jurisdiction.

38Although H.A.’s guilty pleas were not early pleas and they were entered in the face of a strong Crown case with video evidence of the offences, they are an expression of remorse. The Crown says that H.A.’s guilty pleas are an indication of some remorse, but the mitigating effect is attenuated by H.A. deflecting blame for her behaviour in the pre-sentence report to reasons such as her children were not eating, she was not taking her medications, she was not able to work, and her husband was controlling.

39I find that H.A.’s guilty pleas are a true expression of her remorse and acceptance of responsibility and are consistent with the sentiments she expressed in her allocution to the court at the conclusion of the sentencing hearing. I find her to be genuinely remorseful for the offences she committed against her children. H.A.’s and defence counsel’s reference to factors which inform her state of mind at the time, which may have contributed to her commission of the offences, does not equate with H.A. failing to appreciate the wrongfulness of her conduct.

40H.A. has no prior criminal record. She has a significant history of mental health challenges including major depressive disorder dating back to 2013. In 2024, she was diagnosed with bipolar disorder. From the medical and psychiatric records filed, I infer that H.A.’s mental health challenges persisted throughout the period during which she committed the offences between 2020 and 2022. In order for mental health issues to be considered as mitigating factors, there must be some connection between those matters and the criminal conduct at issue.¹⁴ I find that the connection does exist on the record before me.

41Although general and specific deterrence remain primary principles in sentencing for child abuse, in this case the principles must be assessed in the context of an offender whose mental health issues contributed to her behaviour and played a role in her commission of the offences.¹⁵

42H.A. has made significant progress in addressing her mental health challenges and has taken active steps to deal with her anger and parenting issues. The programming she has engaged in since being charged with these offences demonstrate that she has insight and is committed to improving herself and becoming a better parent.

43The author of the pre-sentence report noted that child welfare records indicated concerns about H.A.’s lack of cooperation and failure to appreciate the seriousness of her actions. The child welfare records were not part of the record before me on the sentencing hearing. There is no information about when those comments were made in the child welfare records. For instance, it is unknown whether these concerns were present before H.A. engaged in the programming and psychotherapy that I referred to earlier in my reasons. Furthermore, without the child welfare records, this court cannot assess the context in which those comments and observations were made.

44I am satisfied that through the programming and psychotherapy that H.A. has undertaken, she has gained insight into the wrongfulness of her conduct and the effects these offences have had on her children. Her commitment to bettering herself and the programming she has completed are positive indicators of her prospects of rehabilitation.

45H.A. also took steps to advance her education while awaiting disposition of these charges by obtaining her personal support worker certificate. She has tried to maintain employment but has been unable to do so. Her desire to re-enter the workforce and become a contributing member of society is also an indicator of her prospects of rehabilitation.

46The support letters filed demonstrate that H.A. has been able to lead a pro-social lifestyle and has some support in the community beyond her own family. Crown counsel noted that the letters from these individuals do not refer to H.A. being charged with the child abuse offences for which she is being sentenced and that they should, therefore, be given little to no weight. In my view, the Crown has raised a valid concern about the letters filed. The absence of any reference to the charges in the letters suggests that these individuals do not know or were not told about the incidents of physical violence against her children. However, the letters do demonstrate that H.A. does have positive relationships in the community and has the capacity to be a valued friend, neighbour, and parent. H.A. has the support of her family and others as she continues to work on her own betterment and rehabilitation.

Analysis

47In R. v. Proulx, the SCC addressed how, in some circumstances, a conditional sentence rather than a jail sentence may sufficiently address the principles of denunciation and deterrence. The Court in Proulx said the following:

Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually.¹⁶

48The SCC also noted that, “[t]he stigma of a conditional sentence with house arrest should not be underestimated”.¹⁷ However, the SCC also acknowledged that, “there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct”.¹⁸

49As for deterrence, in Proulx, the SCC stated that “[i]ncarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence”.¹⁹ The SCC cautioned that “Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration”, pointing to the empirical evidence which suggests that the deterrent effect of incarceration is uncertain.²⁰

50The SCC went on to say, “[m]oreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences”.²¹ There may be circumstances in which the need for deterrence will warrant incarceration which “will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed”.²²

51To support its position that a 3-year jail sentence is appropriate, the Crown relied on the Ontario Court of Justice case of R. v. R.P.,²³ and the unreported Ontario Superior Court of Justice decisions of Justice Byrne in R. v. N.-V.,²⁴ and Justice McWatt in R. v. N.F.²⁵

52In R.P., the accused was convicted of four counts of assault against her six-year-old stepson, including assault causing bodily harm and multiple assaults with weapons. The Crown proceeded summarily and sought a 4-yearcustodial sentence, emphasizing the separate dates of abuse and advocating for consecutive sentences to reflect the gravity and duration of the offences. The defence proposed a conditional sentence, arguing that a term of less than two years served in the community would be appropriate.

53Justice Wright rejected the conditional sentence, finding that the statutory requirements were not met, and that denunciation and deterrence were paramount in this case. He noted numerous aggravating factors, including the abuse of a vulnerable child, breach of trust, use of multiple weapons, and lasting physical and psychological harm to the victim. While acknowledging the accused’s lack of prior record and some rehabilitative potential, Justice Wright found no evidence of remorse and limited mitigating factors.

54Ultimately, he imposed a 3-year jail sentence, structured through a combination of consecutive and concurrent terms: 18 months for assault causing bodily harm, 12 months for assault with a belt (consecutive), 6 months for assault with a stick (consecutive), and 3 months for assault with a hand (concurrent). The sentence was deemed necessary to effectively denounce R.P.’s conduct and deter similar offences, particularly given the seriousness and repeated nature of the abuse.

55The case of R.P. has the aggravating factor of significant injuries which is absent in H.A.’s case. The most serious injuries in R.P. included injuries to the victim’s pubic area and scrotum caused by burning with a heated implement. There were also injuries to the child’s back caused by a looped belt and significant bruises to his buttocks caused by striking with a stick and hand.

56R.P. also has the absence of the mitigating factor of remorse which I have found to be present in H.A.’s case. The 3-year penitentiary sentence imposed by Justice Wright in R.P. followed a finding of guilt after a trial, for an offender who lacked remorse and had caused significant injuries to the child victim.

57The Crown’s reliance on Justice Byrne’s decision in N.-V. was limited to the principles to be applied in the sentencing of child abusers. The Crown acknowledged that the facts in N.-V. are distinguishable from H.A.’s case. N.-V. is not a comparator case that assists in arriving at a proportionate sentence for H.A. However, I do adopt the sentiments of Justice Byrne that assessing the emotional trauma of child abuse is difficult and impossible to quantify and that the breach of trust falls at the highest end of the spectrum when the offender is the biological parent of the child victim.²⁶

58In N.F., Justice McWatt imposed a 20-month jail sentence for assault with a weapon and aggravated assault after findings of guilt in a judge and jury trial. Again, N.F. lacked the mitigating factor of remorse. The injuries to the child were serious burns by a hot iron. The child had recovered from the injuries by the time of sentencing.

59The defence relied on Justice Garg’s decision in R.H.²⁷ Justice Garg imposed an 18-month conditional sentence followed by two years of probation for a mother convicted of assaulting her young son over a nearly three-year period. The abuse began when the child was one-and-a-half years old and continued until he was four, involving repeated strikes with kitchen utensils, including a spatula. Although the parties jointly proposed a suspended sentence with probation, Justice Garg found that such a disposition failed to reflect the offender’s moral blameworthiness, the child’s vulnerability, and the seriousness of the harm caused.

60Justice Garg emphasized that child abuse offences require sentences that prioritize denunciation and deterrence. He found several aggravating factors: the prolonged pattern of abusive conduct, the use of weapons and striking out of anger, the significant emotional and psychological impact on the victim, and the grave breach of trust inherent in a mother abusing her child. The offender did not plead guilty or express remorse, which diminished her rehabilitative potential. While she suffered collateral consequences from CAS involvement, including separation from her children, the court declined to treat this as mitigating.

61Nonetheless, Justice Garg acknowledged some mitigating factors: the offender had no prior criminal record, had been employed as a personal support worker, and had taken steps to improve her parenting through programming. He concluded that imprisonment was necessary but could be served in the community through a conditional sentence, given the offender’s reduced risk profile and the principle of restraint. The conditional sentence included nine months of house arrest and six months of curfew, followed by probation and ancillary orders.

62In R.H., Justice Garg also addressed the statutory and jurisprudential requirements for sentencing in child abuse cases. He cited Friesen to underscore the need for denunciation and deterrence in offences involving vulnerable victims. He considered aggravating factors under s. 718.2(a) of the Criminal Code, including the victim’s age, the breach of trust, and the significant impact on the victim.

63On the issue of whether imprisonment could be served in the community, Justice Garg applied the criteria under s. 742.1 of the Criminal Code, concluding that a conditional sentence was appropriate because the term was under two years, community safety was not endangered, and the sentence aligned with sentencing principles.

64H.A.’s case includes many of the aggravating and mitigating circumstances in R.H. However, in R.H., the offender did not plead guilty or express remorse, which diminished her rehabilitative potential. As stated, I find that H.A.’s guilty pleas are a sincere expression of her remorse, which is an indicator of her rehabilitative potential.

65I find that incarceration is necessary to address H.A.’s moral blameworthiness and the harmfulness of her conduct. The sentence must emphasize denunciation and deterrence. Many of the observations Justice Garg makes at paragraphs 28 to 35 of R.H., about the offender and the offences and the need for incarceration, apply to H.A. and her offences. The significant breach of trust over a prolonged period of abuse of her two children, at times using weapons, requires a sentence of imprisonment.

66I am satisfied that H.A.’s term of imprisonment can be served in the community. I conclude that:

(i) the appropriate term of imprisonment is less than two years;

(ii) serving a conditional sentence would not endanger the community; and

(iii) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.

67The mitigating circumstances persuade me that a conditional sentence is appropriate. I have considered the principle of restraint, which has contributed to my finding that a CSO is appropriate in H.A.’s case.²⁸ H.A. has been released on an undertaking for these offences for a significant period without breaching any of the conditions, including the no contact conditions involving her children. In the interim, she has participated in programming and psychotherapy, has been compliant with her medications and has taken steps to advance her education. I find that a conditional sentence would not endanger the community.

68The deterrent and denunciation required for H.A.’s offences leads me to find that a CSO of maximum duration with onerous conditions is required.²⁹ I find that, given the mitigating factors, this is a case where a conditional sentence can provide significant denunciation and deterrence by imposing sufficiently punitive conditions.

The Sentence

69For the foregoing reasons, I impose a two-year less a day CSO on H.A. which permits her to serve the sentence of imprisonment in the community. She must comply with the following CSO conditions:

(1) Keep the peace and be of good behaviour.

(2) Appear before the Court when required to do so by the Court.

(3) Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province.

(4) Notify the Court or supervisor in advance of any change of name or address, and promptly notify the Court or supervisor of any change in employment or occupation.

(5) Report in person or by telephone to a supervisor immediately and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision.

(6) Cooperate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your supervisor on request.

(7) Live at [address redacted], and do not change that address without obtaining the consent of the supervisor in advance.

(8) You shall report to your Conditional Sentence Supervisor for the purpose of arranging your enrolment in the GPS program provided by the Recovery Science Corporation (RSC).

(9) After completing the intake process with your Conditional Sentence Supervisor, you shall go directly to your approved address and observe a term of complete house arrest until the required GPS unit is installed. There are no exceptions to this house arrest condition.

(10) You shall be subject to the GPS Monitoring program for the entire length of this Conditional Sentence Order.

(11) You will be subject to GPS monitoring by Recovery Science Corporation (RSC) and agree to abide by all of its rules and protocols by providing your signature on the GPS Rules and Protocols which will be attached to this Conditional Sentence Order as Schedule “A”. These rules and protocols form part of this Conditional Sentence Order.

(12) The home confinement condition will be in effect for the first 12 months of the Order. Remain in your residence at all times EXCEPT:

i. between 1 p.m. and 4 p.m. every Saturday in order to acquire the necessities of life;

ii. for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling);

iii. for going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments, including appointments with a psychiatrist;

iv. for going directly to or from and being at assessment, treatment, or counselling sessions;

v. you will confirm your schedule in advance with the supervisor setting out the times for these activities;

vi. with the prior written approval of the supervisor. The written approval is to be carried with you during these times;

vii. for carrying out any legal obligations regarding compliance with this Conditional Sentence Order, including reporting as directed;

viii. to attend at Central Police Station, 155 King William Street, Hamilton, to provide DNA samples if they are not obtained in the courthouse today.

(13) Following your home confinement, for the balance of the Order, remain in your residence, or on the property of your residence, at all times daily between the hours of 10 p.m. and 6 a.m. EXCEPT:

i. for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling);

ii. with the prior written approval of your supervisor. The written approval is to be carried with you during these times.

(14) Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with A.Z., Z.Z., or S.Z. and do not be within 100 metres of any place where you know A.Z., Z.Z., or S.Z. to live, work, go to school, frequent or any place you know them to be, EXCEPT:

i. pursuant to a family court order made after today’s date, or for the purpose of conducting or defending family court proceedings;

ii. in the presence of or through legal counsel;

iii. for purposes of attending family mediation with an accredited family mediator or professional mediator service provider; or

iv. with the consent of Hamilton Child and Family Supports (formerly the Children’s Aid Society of Hamilton), who will be informed of the circumstances surrounding the commission of these offences as outlined in these reasons for sentence.

(15) Do not be in the company of persons under the age of 16 years, unless another adult is present.

(16) Do not seek, obtain or continue any paid or unpaid activity that involves being in a position of trust or authority towards a person under the age of 16 years.

(17) Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon, firearm part, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).

(18) You shall attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your supervisor and complete them to the satisfaction of the supervisor for, including but not limited to, anger management, parenting and life skills. You shall sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

70The CSO will be followed by a 2-year probation order. In terms of ancillary orders, I require H.A. to provide a sample of her DNA and, pursuant to s. 110 of the Criminal Code, I prohibit her from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, firearm part, ammunition, prohibited ammunition or explosive substance for 10 years. Pursuant to s. 737(2.1) of the Criminal Code, I waive the victim surcharges, being satisfied that the imposition of the surcharges would cause undue hardship to H.A. given her financial circumstances and mental health challenges, as detailed in the pre-sentence report and the other materials filed.

Released: November 10, 2025

Signed: Justice J.P.P. Fiorucci

Schedule “A”: GPS RULES AND PROTOCOLS - for Conditional Sentence Orders

1. I agree to 24-hour GPS monitoring by the government-funded GPS monitoring program in accordance with the conditions of the conditional sentence order.

2. I agree to follow the conditions of the conditional sentence order including those conditions with respect to electronic monitoring, and the Rules and Protocols included here in Schedule “A”.

3. I agree that I will follow all instructions of the GPS monitoring staff, police authorities, and Ministry of the Attorney General staff, and maintain the GPS monitoring equipment.

4. In the event of a malfunction of the GPS monitoring device or an issue regarding the proper maintenance and/or proper functioning of the GPS monitoring device, I will follow the instructions received from the monitoring company to troubleshoot, repair or exchange the device and if so instructed, attend the nearest police service, until the issue regarding the GPS monitoring device has been resolved.

5. I understand that in the event of any breach of my requirements, or damage to the equipment, immediate notification will be made by the monitoring service to the police, and/or Ministry of the Attorney General staff to be addressed accordingly. This may result in apprehension and re- incarceration.

6. I will wear the monitoring device and will not attempt to remove, tamper with, or otherwise interfere with the operation of the device, or any related equipment.

7. I give my consent for the monitoring company to release my monitoring information, both real time and historic, and my other personal information, to the relevant authorities including Probation and Parole Officers, police services, for purposes of investigating and enforcing compliance with this order. Recipients of my information might include any and all police services, any prosecutorial authority and any court having jurisdiction respecting enforcement of this order. Recipients may also include sentence administration authorities if I am serving any form of sentence during the currency of this order. I understand that my information may be released under this paragraph at any time, any number of times, without judicial authorization and without additional notice to me. I waive any expectation of privacy I have against the release or sharing of my information as described in this paragraph.

8. I authorize the monitoring service to record any or all phone calls or other communications between myself and the monitoring service.

9. Where applicable, I will promptly answer my telephone, regularly check and immediately reply to telephone messages, text messages, email messages or other communications relayed to me from the monitoring service and/or their agents. I will cooperate fully with instructions received.

10. I will attend when and where directed by the monitoring service for any purpose associated with the monitoring of the GPS conditions.

11. I will promptly answer the door and allow the monitoring service representatives and/or their agents to enter the home with or without an appointment for the purpose of inspecting or maintaining the monitoring equipment and, if desired for the safety of its staff, with police accompaniment.

12. I will charge the GPS monitoring device 2 hours continuously every day. A vibration will be felt when the device battery is getting low. When a Critical Battery Alert is received, the siren on the GPS monitoring device will be activated and continue to alarm until I begin charging. If this protocol is not adhered to, local police will be called to intervene, which could result in apprehension and re- incarceration. DO NOT CHARGE WHEN SLEEPING.

13. I will not swim while wearing the GPS monitoring device and I will never immerse it in water. Showers are recommended over baths – if a bath is necessary, the bracelet must be kept out of the water.

14. If and when I feel two (2) vibrations consecutively, I understand that this is a signal that I must contact the Recovery Science Corporation immediately at 1-877-595-2573.

Footnotes

1. 1When the offences were reported in March of 2022, A.Z. was 9 years old and Z.Z. was 5 years old.
2. 2Sentencing, Tenth Edition, Clayton Ruby, LexisNexis Canada Inc., 2020, Toronto, ON, Chapter 1, p. 2, §1.2. R. v. Morrissette et al., [1970] S.J. No. 269 (Sask. C.A.), at para. 3.
3. 3R. v. Nasogaluak, 2010 SCC 6, at para. 40.
4. 4R. v. Lacasse, 2015 SCC 64, at para. 12.
5. 5R. v. Parranto, 2021 SCC 46, at para. 12.
6. 6Ibid, at para. 12.
7. 7Ibid, at para. 10.
8. 8R. v. M.(C.A.), 1996 SCC 230, at para. 92.
9. 9R. v. Parranto, supra, at para. 11, citing R. v. Friesen, [2019] S.C.J. No. 100, 2020 SCC 9, at para. 32.
10. 10R. v. Parranto, supra, at para. 11, citing R. v. Friesen, supra, at para. 33.
11. 11R. v. Friesen, supra, at para. 1.
12. 12R. v. R.H., 2025 ONCJ 163.
13. 13R. v. Friesen, supra, at paras. 131 – 133.
14. 14R. v. Barham, 2014 ONCA 797, at para. 8; R. v. Fabbro, 2021 ONCA 494, at para. 25.
15. 15R. v. Batisse, 2009 ONCA 114, at para. 38; R. v. Dedeckere, 2017 ONCA 799, at para. 14; R. v. Robinson (1974), 1974 CanLII 1491 (ON CA), 19 C.C.C. (2d) 193, at 197.
16. 16R. v. Proulx, 2000 SCC 5, at para. 115.
17. 17Ibid, at para. 105.
18. 18Ibid, at para. 106.
19. 19Ibid, at para. 107.
20. 20Ibid, at para. 107.
21. 21Ibid, at para. 107.
22. 22Ibid, at para. 107.
23. 23R. v. R.P., 2023 ONCJ 299.
24. 24R. v. N.-V. (April 12, 2023), Toronto, CR-20-10000249-0000 (Ont. S.C.J.).
25. 25R. v. N.F. (July 29, 2023), Toronto, C57468 (Ont. S.C.J.).
26. 26R. v. N.-V., supra, at paras. 22-23.
27. 27R. v. R.H., supra.
28. 28See R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, 72 O.R. (3d) 1, 186 C.C.C. (3d) 129 (Ont. C.A.), at para. 96; see also R.H., supra, at para. 38.
29. 29R. v. Proulx, supra, at para. 106.