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 read as follows:

486.4 (2.1) 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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

Mandatory order on application

486.4 (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 shall

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

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

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: July 20, 2018

Court File No.: Ottawa 17-CA7713

Between:

Her Majesty the Queen

— and —

Luzia Arruda

Before: Justice P.K. Doody

Heard on: February 8, May 2, and June 15, 2018

Reasons for Sentence released on: July 20, 2018

Counsel:

• Bruce Lee-Shanok and Tara Dobec, counsel for the Crown
• Mark Ertel, counsel for the defendant

DOODY J.:

Overview

1The defendant pleaded guilty to one count of assault on a 2 ½ year old child for whom she was providing day care services in her home on March 25, 2015. The charge was laid June 25, 2017.

2Crown counsel seeks 90 days in custody followed by 18 months of probation. Defence counsel submits that a conditional discharge and a period of probation would be appropriate.

3The fundamental purposes of sentencing, as established by s. 718 of the Criminal Code, are to denounce unlawful conduct and the harm done to victims and the community caused by it; deter the offender and others from committing offences; separate offenders from society where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or the community; and promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

4The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

Circumstances of Offence

5The offence is shown on a video which was made by a camera secretly installed by the defendant's husband. The video shows the defendant sitting on a couch. She is reading what appears to be a computer tablet. The child is sitting on the opposite end of the couch. The defendant can be seen suddenly leaning over and grabbing the child's hair, and pulling her by her hair until the child is on her lap. The defendant brushed the child's hair with her hand, not roughly or aggressively, and then pushed her onto the floor where she ended up on her knees. This incident took 7 seconds. The child then got up and walked away. Twenty seconds later, the defendant's own son can be seen walking back in front of the couch together with the child the defendant had assaulted.

6The victim's mother filed a victim impact statement. She said that their daughter seemed to be happy most of the time and when she was upset or cranky she and her husband assumed that she had just been having a bad day. She and her husband did not find out what had happened until quite some time after they had switched daycare providers. They had to find new daycare on short notice, presumably after the Children's Aid Society got involved, as I will explain. The victim's mother also wrote that she and her husband have difficulties trusting anyone with their children. She said that her daughter has a hard time warming up to and trusting new people.

7The victim's father told the author of the presentence report that his daughter is doing fine. He said that they have moved on from the incident.

Circumstances of the Offender

8The defendant has no criminal record. She is presently 39 years old and was 36 at the time of the offence. She immigrated from Brazil in 2000 and met and married her husband in Canada that year. They have 3 sons, aged 13, 11 and 6. She has been separated from her husband since 2016.

9She operated a day care out of her home from 2007 to 2015. She has also worked part-time in a coffee shop, grocery store, and convenience store. There is no suggestion that she has any issue with drugs or alcohol.

10The defendant told the author of the presentence report that her husband was mentally and physically abusive toward her on a regular basis, and was very controlling. The author wrote that the defendant "stated she felt like she was a robot in the marriage and was trapped." She said that her husband forbade her to have friends and would not allow her to leave the residence unless accompanied by him. The defendant told the report's author that although she does not believe that she suffers from any mental health issues, her husband continually told her she was crazy, and that she had begun to feel that she was crazy and could do nothing right. She said that, unbeknownst to her, her husband had placed hidden cameras throughout their home and had used the video of the assault to control her even more until she finally got the courage to leave him.

11In his submissions on the first day set aside to consider sentencing, Crown counsel noted that the defendant told the author of the pre-sentence report that she had not reported the abuse to the police. His implication was that the allegation of abuse should not be believed because she had not reported it. The pre-sentence report had quoted a letter written by the defendant in which she wrote, "I haven't reported any of those abuse because I was terrified to lose my children." After I expressed surprise that Crown counsel would submit that the failure to complain by an allegedly abused spouse was relevant to her credibility, he submitted that whether the defendant was abused or not was irrelevant to the issue of the appropriate sentence. Defence counsel, however, told the court that the defendant had indeed reported the abuse to the police. I granted an adjournment so that defence could lead evidence on the issue.

12When court reconvened 6 weeks later, the defendant gave evidence. She testified that her marriage had been very disturbing and abusive. Her husband never let her have friends. He would not let her use a computer in the house unless he was present, locking it when he left with a password known only to him. Even when she worked outside the home, he would regularly pass by her place of employment to check up on her. He controlled all the money she earned. She testified that the marriage was abusive in every aspect – mentally, physically, and emotionally.

13She testified that she had called police a few times in 2005 or 2006, but she pretended to be calling on behalf of a friend because she had been worried that if she told someone the Children's Aid Society would be alerted and they would remove the children. She said that between 2013 and the day of her testimony, however, she had called police 16 to 20 times. She said that she tried to get copies of the police reports, but could not afford to pay the fee of $55 for each report.

14She said she was mentally exhausted at the time of the assault. She said she does not remember assaulting the victim. She said of the assault "it is not me". She expressed remorse and regret for what she had done.

15She said that on a Friday, the day before her husband called the police in 2015, she had asked her husband to let her leave because they could not, for the sake of the children, live the way they had been. He responded that if she left, she would not be able to see her children. She testified that the following day, a Saturday, she heard him calling the police and telling them that he had a video of her assaulting a child. After he spoke with the police, he told her that if she left, he would tell everyone that she had assaulted a child. He told her that she would lose her children if anyone saw the video. She said that he told the police that he had lost the video. She stayed and the abuse continued. He regularly assaulted her. Anything she said would make him angry. After nine months to a year, she got to the point where she could not see her children anymore in that environment and she left.

16She said that he turned the tape over to the CAS in 2016, after she left him.

17After she left the marriage, she went to Algonquin College and was trained as a personal support worker. She got a job at a nursing home. Her husband told her employer that she had assaulted a child in her day care business and about this charge. As a result, she lost her job. She is now unemployed.

18She provided a number of texts between her and her husband, all of which she testified had been given to the police, that corroborated her evidence of emotional abuse, her husband having threatened to call the police if she did not do as he said, and her husband causing her to lose her job. He told her "do not fool around" because "you know there is consequences." He wrote that he would not rest "until I have the kids to myself and you underground." He wrote "Bitch and you think I will not make you pay for this"; "I have been in this country forever and I know how is things working"; "Look to how many warnings I have given to you and you never listened … if you listened no court"; "Bitch, you listen to my orders or else I finish you"; and "Bitch, if you listened to me you wouldn't have lost your job and I wouldn't have sent the video and email to your boss."

19The defendant was aggressively cross-examined by Crown counsel. She was not shaken in her evidence.

20Despite the Crown having received several weeks' notice that evidence would be provided to the court to establish that the defendant had complained to the police, no evidence was led in rebuttal. On the first day of sentencing submissions, when Crown counsel suggested that I should not accept what the defendant had told the author of the presentence report and said that it was unfortunate that its author had not spoken to the husband, defence counsel pointed out that the husband was in court to watch the proceedings and invited the Crown to call him as a witness. That was not done. On the second day of the sentencing hearing, after she had cross-examined the defendant, Crown counsel (who had not appeared for the Crown on the first day) advised the court that she did not take issue with the defendant's evidence that she had been a victim of domestic violence.

21The defendant's evidence is partially corroborated by the facts the Crown provided to the court in support of the guilty plea, as follows. The police were contacted by the defendant's husband on March 28, 2015. He told the police that he had a video that showed the defendant pulling a child's hair that had been recorded on a hidden camera. When the police attended, he told them that the video had been corrupted and was no longer available. The police closed the file for lack of evidence. In January 2016, the CAS contacted the police to say that they had the video.

22March 25, 2015, the day of the assault, was a Wednesday. March 28, the day the police were contacted, was a Saturday, as the defendant testified.

23I accept the defendant's evidence. She was the victim of an abusive and controlling relationship at the time of the assault. She eventually reported this to the police, although she refrained from doing so for a number of years because she was afraid that she would lose custody of her children if she did so. In any event, Crown counsel was wrong to suggest that a delay in or a failure to report is relevant to the credibility of an alleged victim of domestic abuse.

24I also accept the defendant's evidence that she has no memory of the assault.

25The defendant is remorseful. She expressed her remorse when she testified. She provided the author of the presentence report with a letter. It reads, in part:

I don't expect forgiveness for what I have done to [name of child victim] and I know only God will ever know what was inside of me at that stage of my life. But I loved [name of victim] and I had all the respect for her parents and one day I wish they would forgive me. Because there is no one day goes by I don't think of it.

26The defendant's sister, who immigrated to Canada before the defendant did, told the author of the presentence report that the assault is totally out of character for the defendant. Another friend, who was her supervisor at the coffee shop where she once worked, described her as a wonderful, caring, and outgoing person. He said that he has never seen her have any anger issues. He also said that the offence was out of character for the defendant. Another friend, who has known the defendant only since last October, described the defendant as a very sweet, easy going individual.

27The defendant has dealt with Ottawa Victim Services as a result of her reporting the abuse she suffered at the hands of her husband. That agency referred her to Ms. Barbara Freedman for counselling. Ms. Freedman provided a letter to the court in which she indicates that she is counselling the defendant to assist her in dealing with issues relating to her husband's treatment of her. Ms. Freedman wrote: "Based on our sessions, she has not conveyed a violent nature to me, but rather appears to be a caring and devoted parent to her 3 sons."

Analysis

28There a number of aggravating factors in this case. The defendant was in a position of trust toward the victim, who was only 2 ½ years old. Section 718.01 of the Criminal Code provides that a court sentencing an offender for an offence which involved the abuse of a person under 18 shall give primary consideration to the objectives of denunciation and deterrence. Subparagraphs 718.2 (a)(ii.1) and (iii) provide that the abuse of a victim under 18, and abuse of a position of trust, are aggravating circumstances. As Crown counsel submitted, these statutory provisions were not a change in the law when enacted; they repeat the law developed over many years.

29The assault seems completely unprovoked.

30There are also a number of mitigating factors. The defendant has no record. She pleaded guilty at an early opportunity. This is an indication of remorse and lends credence to the submission that she is a good candidate for rehabilitation. The defendant's remorse is also clear from the things I have already described.

31While an assault of a young child in a day care by the caregiver entrusted with her care is always serious, the assault was extremely brief in duration. There is no evidence that it was ever repeated. Given the secret videorecording carried on by the defendant's husband, and the absence of a report of any other assaults, it is reasonable to conclude that this was an aberration on the part of the defendant. And there have been no convictions against the defendant in the three years since the assault.

32The abuse suffered by the defendant does not excuse the assault. It does, however, support a finding that the defendant was less morally blameworthy than she otherwise would be.

33The assault was, on the evidence I have heard and from what the presentence report author was told, completely out of character for the defendant.

34The defendant has suffered as a result of what she did. She lost a job which she had taken special training to qualify for. She remains unemployed. Her business of a day care center is no more. These things, to a great extent, accomplish specific deterrence. She knows the result of committing an offence like this.

35Crown counsel has asked for a sentence of 90 days in custody.

36In R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.), Rosenberg J. wrote:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation. In R. v. Stein (1974), 1974 CanLII 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.) at p. 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:

It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence.

(Emphasis added [by Martin J.A.])

As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed ss. 718 and 718.2 of the Criminal Code, R.S.C. 1985, c. C-46. Section 718 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".

The principle embodied in now s. 718.2(e) was of particular significance in this case. It provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Although these sections had not been proclaimed when the appellant appeared before Judge Cloutier, the provisions to a large extent codify existing practice and principles in this province, especially in relation to first offenders: see R. v. Salituro (1990), 1990 CanLII 10984 (ON CA), 56 C.C.C. (3d) 350 (Ont. C.A.) at p. 373, per Galligan J.A.

The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment.

37In R. v. Batisse, 2009 ONCA 114, Gillese J.A. wrote for the majority of the Court of Appeal at paragraphs 32 to 34:

… the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at p. 545.

Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 2006 CanLII 2610 (ON CA), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, 2005 CanLII 5668, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

38The Crown elected to proceed summarily in this case. That is an indication of the Crown's view of the seriousness of the offence. (R. v. L. (R.J.), 2006 BCSC 668 at paras. 31, 46, 48 and 58; R. v. Bell, 2008 MBQB 117 at paras. 15-16)

39Sentencing is a highly contextual exercise, dependent on the particular facts of each case.

40I recognize that general deterrence is an important consideration for an offence of violence against a young child by a care provider. It is not, however, the only consideration. Furthermore, as I have indicated, I am satisfied that specific deterrence is not a significant factor in this case.

41In my view, a custodial sentence of 90 days, as sought by the Crown, is completely disproportionate, having regard to the Court of Appeal's directions in Stein, Priest, and Batisse to consider every available sentence other than incarceration for a first offender. I recognize that there are circumstances surrounding some offences of violence by domestic caregivers which require that a custodial sentence be imposed despite the defendant being a first offender. In my view, this is not one of those cases.

42I have concluded that a conditional discharge is appropriate in this case.

43Section 730 of the Criminal Code provides that a sentencing court may discharge an offender absolutely or on conditions set out in a probation order when the offence is not one for which a minimum punishment is prescribed or is punishable by fourteen years or more imprisonment, if the court considers it "to be in the best interests of the accused and not contrary to the public interest." I note that the defendant does not have to satisfy the court that the discharge is in the public interest, but only that is not contrary to the public interest. (R. v. Bothman, [1983] O.J. No. 70 (C.A.)) This is a lower standard than would be a requirement that it be in the public interest. (Gilles Renaud, Sentencing in Ontario (Landon Legal Library Press, 2012, vol. 1 at 91))

44Hill J. summarized much of the applicable law from the Court of Appeal at paragraph 32 of his decision in R. v. Hayes, [1999] O.J. No. 938, where he granted a conditional discharge to an offender who had pleaded guilty to assault causing bodily harm and breach of a peace bond. The offender had been in an argument in a bar which continued on the street. He threw a bottle of beer at the complainant, striking him on the face and causing a laceration which required stitches. Hill J. wrote:

Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 1975 CanLII 1447 (ON CA), 24 C.C.C. (2d) 551 (Ont. C.A.) at 552 per Arnup J.A. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 1977 CanLII 1959 (ON CA), 37 C.C.C. (2d) 182 (Ont. C.A.) at 184-5 per Martin J.A.; Regina v. Culley (1977), 1977 CanLII 1965 (ON CA), 36 C.C.C. (2d) 433 (Ont. C.A.) at 435 per Martin J.A. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.). While a discharge is only rarely appropriate in offences involving violence causing injuries, such a sentence is not universally unavailable in such circumstances: Regina v. Wood (1975), 1975 CanLII 1410 (ON CA), 24 C.C.C. (2d) 79 (Ont. C.A.) at 80 per Jessup J.A.

45Many of these factors are applicable in this case. The defendant acted out of character. She was suffering from unusual stress as a result of the abuse she had been experiencing from her husband.

46Furthermore, a criminal record may well interfere with her employment as a personal support worker, the job for which she received training at college and which she held before she was fired as a result of her husband's efforts. It is clearly in her interest that she be granted a discharge.

47Crown counsel submitted, on the second day of the sentencing proceedings, that it would be unsafe for the defendant to ever again be employed as a personal support worker. She submitted that, to achieve this, no discharge, absolute or conditional, should be granted. She suggested that a discharge would not be apparent to a potential employer.

48That is not so. As defence counsel pointed out, and as Crown counsel ultimately conceded, a conditional discharge is discoverable by a "vulnerable sector check", a requirement for a job as a personal support worker. The Criminal Records Act, R.S.C. 1985, s. 6.1, prohibits the disclosure of a conditional discharge and requires that any reference to a conditional discharge be removed from the criminal records system maintained by the RCMP only after three years have elapsed since it was granted. A vulnerable sector check will disclose the discharge, and thus the finding of guilt, during that three year period.

49Consequently, the issue is whether it is contrary to the public interest that the defendant's record of having received a discharge for assault be disclosable to a potential employer for only three years.

50I have concluded that that is not contrary to the public interest.

51Crown counsel submits, essentially, that a discharge not be granted following any finding of guilt for assault by a caregiver. Yet that is not what Parliament decreed, although it would have been simple for it do so. What Parliament has said is that discharges are not available for a broad group of offences. Assault, by a domestic caregiver or otherwise, is not in that group. The principle of statutory interpretation known as "implied exclusion" suggests that this exclusion was deliberate. (Sullivan and Driedger on the Construction of Statutes, 4th edn, 2002, pp. 187-89)

52In many cases, it would be inappropriate to grant a discharge for an assault on a child in the offender's care. I am satisfied, however, that it would not be contrary to the public interest to do so in this case. In coming to that conclusion, I have taken into account my finding that the defendant acted out of character as a result of the extreme stress she was under from the abuse by her husband, her sincere expression of remorse and regret, and my finding that specific deterrence is not required for the reasons I have set out. More than three years have passed since the date of the offence and the defendant has not been charged with any further offence. I do not believe that there is a significant possibility that the defendant would commit such an offence again. The three year period in which the finding of guilt will be apparent to potential employers will more than suffice to protect the public. Furthermore, in my view, this is one of those cases in which a suspended sentence would not be a greater deterrent than a conditional discharge to others who understand all the circumstances.

53The defendant will be discharged on condition that she be subject to probation for 12 months. The terms of that probation shall require, in addition to the statutory terms, that she not contact the child she assaulted or any member of her family and that she participate in counselling for such matters as the probation officer considers appropriate.