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 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

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.

Ontario Court of Justice

Date: 2021 03 23 Court File No.: 19-0501

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

S.B.

Before Justice Angela L. McLeod

Plea on September 3, 2020 Sentencing Submissions on January 29, 2021 Reasons for Judgment released on March 23, 2021

Counsel: Shioban Dundon (articling student) and Sarah Sullivan......... counsel for the Crown Muhammed Adel Afzal............................................................... counsel for the defendant

McLeod J.:

Introduction

[1] A plea was entered on September 3, 2020; a pre-sentencing report (exhibit #2) was ordered, and the matter returned for submissions on January 29, 2021.

[2] S.B. pled guilty to a single count of assault cause bodily harm. An agreed statement of fact, including Appendix ‘A’ (SCAN Report) was filed as exhibit #1. A s. 486.5(1) order was made and as such, the victim shall be hereinafter be referred to as R.B.

[3] R.B. was an infant at the time of the incident and has since been adopted by a family member. When, and if, his new mother wishes to inform him of this part of his history, it is important that she be the sole decider of what is shared.

Facts

[4] The agreed statement of fact includes the full names of the defendant and the victim, as such it will not be attached to this decision. The facts are summarized herein.

[5] S.B. is the biological mother of R.B., who was 8 months old at the time of the assault (he is now 3 years of age). He was born prematurely. She was 26 years of age when he was born. Family Connexions (formerly known as the Children’s Aid Society) had been involved since his birth.

[6] S.B. was sharing a residence with a number of other adults, none of whom were the father of R.B.

[7] On October 9, 2018, S.B. took R.B. to a local hospital expressing concern about a rash and the infant’s inability to move his arm. The rash was diagnosed as Sarcoptes scabiei – burrowing mite. Family Connexions was called; R.B. was apprehended and referred to the SCAN (Suspected Child Abuse and Neglect) unit at Sick Kids Hospital in Toronto for further assessment.

[8] Dr. Kadar’s report outlined the following injuries on R.B.’s body:

(1) Two fractures on two of his right ribs; (2) A fracture of the right humerus (arm – shoulder to elbow); (3) A metaphyseal fracture to the left distal femur (leg – thighbone above the knee); (4) A metaphyseal fracture to the right proximal tibia (leg – shinbone – close to the knee); (5) A metaphyseal fracture to the right distal tibia (leg – shinbone – close to the foot).

[9] Dr. Kadar noted that the fractures were not as a result of an underlying medical condition, or Charcot-Marie-Tooth Syndrome (see below). As per Dr. Kadar, metaphyseal fractures “occur from tractional and torsional forces, which are generated by forceful yanking, tugging, or twisting of an infant or toddler’s limb. These fractures would not be caused by accidental forces such as falls from height unless there was forceful traction or tugging applied to the limb involved during the fall”.

[10] The injuries were dated as having occurred during the month prior to the attendance at the hospital. The medical staff were unable to date the injuries given the varying degree of healing.

[11] Initially, S.B. denied wrongdoing. Ultimately, S.B. admitted to inflicting the injuries by being ‘rough with him and out of frustration with him’.

[12] S.B. had been given some counselling about being too rough with R.B. sometime prior to the attendance at the hospital.

Circumstances of the Offender

[13] S.B. has Charcot-Marie-Tooth disease type 1A (a genetic neurodegenerative disorder which results in nerve damage mostly in the arms and legs). She is prescribed Gabapentin, Cymbalta, medical marijuana and iron supplements.

[14] S.B. was at the time of the incident in receipt of Ontario Works.

[15] The PSR outlines that S.B.:

(1) Had a normal childhood; (2) Was not abused by her parents; (3) Had a brief relationship with R.B.’s father; (4) Completed high school (in spite of an undiagnosed, but suspected learning disability); (5) Has a lengthy history of mental health issues, including depression and anxiety; (6) Has engaged in 5 sessions of counselling since October 2019, concluding on June 12, 2020 (note that the PSR appears to be in error re the dates, and I have made the correction herein); (7) Has no criminal record; (8) Is currently 29 years of age.

[16] Defence counsel submitted that S.B. is cognitively much younger than her chronological age; that she required much support as a parent but did not receive same; and her ‘mood’ worsened in post partum.

[17] In the weeks before the incident, S.B. had complained to her family physician that she was suffering from excessive sleepiness, blacking out, dizziness and pressure headaches.

[18] Filed as Exhibit #3 are materials from Dr. Kiss. S.B. was initially diagnosed with a moderate, major, depressive disorder and then at the time of the hospital visit with severe, major, depressive disorder. Dr. Kiss wrote that “her depression has worsened in the postpartum period”. Defence counsel (without objection from Crown Counsel) submits that the offence(s) was committed in the context of post partum depression.

[19] One year after her arrest and release, S.B. reported to Dr. Kiss that she had a history of physical and sexual abuse and assault, as well as witnessing family violence as a child. This was not reported to the author of the PSR, and in fact, as is noted above, she reported having a normal childhood.

[20] S.B. was cooperative with Family Connexions and in child protection court. R.B. has now been adopted by a relative.

[21] S.B. identifies as having a matrilineal indigenous history, but unfortunately has little knowledge about her ancestry. She has never been involved in the indigenous culture but does have an interest in learning. She has not sought a Gladue report, nor did counsel make submissions for Gladue factor considerations.

Aggravating and Mitigating Facts

[22] I find the following to be aggravating facts:

(1) The number of fractures; (2) The number of areas of fractures, legs, arms (upper and lower); (3) The delay in seeking medical attention (some fractures had begun to heal and thus the fact that R.B. lived with the injuries for a month, the inference that can be drawn is that he would have been in pain and suffering for that extended period of time); (4) The age of the child (8 months); (5) The scabies diagnosis, the inference to be drawn is an element of neglect; (6) The element of breach of trust, S.B. being the biological and custodial parent of R.B;

[23] I find the following to be mitigating facts:

(1) S.B.’s mental health issues; (2) S.B.’s reduced cognitive capabilities; (3) S.B.’s post partum depression (which is find is separate and distinct from her other pre-existing mental health issues); (4) The plea of guilt; (5) S.B.’s cooperation with Family Connexions and the Child Protection Court, to the end result of R.B. being adopted; (6) S.B.’s cooperation with the police, providing two long statements; (7) S.B. sought medical assistance for her mental health issues post birth of R.B.; (8) The lack of long-lasting injuries.

[24] I find the following to be neutral facts:

(1) S.B.’s initial denial of guilt. Medical attention was not, at that point, delayed, as the infant was already in the hospital for care; (2) The date of the guilty plea, as the matter was delayed in part due to the global pandemic and the resultant shut down of the courts.

Position of the Parties

[25] The Crown seeks 18 months custody to be followed by 24 months probation. Ancillary orders sought include a DNA order and a s. 110 order for 10 years.

[26] The Crown argues that the primary sentencing considerations are denunciation and deterrence. The Crown highlights the aggravating factors of the age of the victim and the position of trust. The Crown acknowledges the mitigation of the guilty plea, accepts same as an expression of true remorse, the lack of a criminal record and following the reasoning of this court in R. v. Gabourie, 2021 ONCJ 9, the protection of community members during the current global pandemic.

[27] The Crown made reference to a number of cases, urging the court to consider the 11 factors outlined in R. v. McCauley, 2007 ONSC 13937, [2007] O.J. No. 1593 (ONSC), with a particular emphasis on principles #5 and #6.

[28] Pursuant to R. v. Habib, 2000 ONCA 16824, 2000, 147 C.C.C. (3d) 555 (Ont. C.A.), the Crown submits that S.B.’s actions fall under the second category of child abuse, “immature or unskilled in matter of childcare, and does not fully appreciate the seriousness of their actions”.

[29] The Crown is opposed to a conditional sentence order.

[30] Defence counsel submits that the appropriate sentence is a 12-month conditional sentence order to be followed by 36 months probation. The ancillary orders are agreed upon.

[31] As noted above, Mr. Afzal highlights the circumstances of S.B., as well as the post partum depression and lack of parenting support. He too referred to a number of cases, many of which overlapped those of the Crown.

[32] S.B. addressed the court. Thru tears she said, “I am remorse, I regret it, I wish it never happened, wish I had better support than I did. I am glad that he is doing very well and is still in the family. He is being well looked after by my [ omitted for privacy ]”.

Caselaw and Guiding Principles

[33] Many of the cases referred to by the parties are for more serious offences; aggravated assault endangering life, aggravated assault etc. Few involved post partum depression. Many include women with low normal intelligence and immaturity. Nonetheless, the sentencing principles are of assistance.

[34] McCauley, supra, identifies 11 principles for consideration in child abuse cases [^1]. At paragraph 28, Justice Hill offers a non-exhaustive list:

(1) "[T]he law must protect children and those who are defenceless from unwarranted bodily interference": R. v. E.(A.), at 461; R. v. Cooper, [1985] O.J. No. 138 (Ont. C.A.) at 2-3; R. v. Cudmore (1972), 1972 ONCA 493, 5 C.C.C. (2d) 536 (Ont. C.A.) at 538. (2) Denunciation and deterrence are the paramount sentencing considerations in child abuse sentencing: R. v. Costello, [2003] B.C.J. No. 1768 (B.C. C.A.) [hereinafter R. v. S.E.C.] at para. 16. (3) While the appropriate sentence must depend on the particular facts in each case, a contested "typical case" of shaken baby syndrome may attract a sentence of 3 to 5 years' imprisonment although "the range must extend to accommodate the rare or exceptional case": R. v. Habib (2000), 2000 ONCA 16824, 147 C.C.C. (3d) 555 (Ont. C.A.) at 561. (4) Although the objectives of denunciation and deterrence are particularly pressing in child abuse cases "with the result that incarceration would generally be preferred" (R. v. Ewen (2000), 2000 SKCA 36, 144 C.C.C. (3d) 277 (Sask. C.A.) at 286; R. v. O'Brien, 2000 BCCA 199, [2000] B.C.J. No. 669 (B.C. C.A.) at para. 7-10), a conditional sentence may be imposed where special mitigating circumstances exist: Habib, at 561-2; R. v. Carle, [2001] B.C.J. No. 1797 (B.C. C.A.) at para. 9-11. (5) "Parents...cannot escape all responsibility for their actions simply by relying on their own problems": R. v. Turner, [2001] E.W.J. No. 2494 (Eng. C.A.) at para. 17. (6) Offenders with low intellectual ability or poor anger control who shake a child in frustration cannot, on that account alone, escape incarceration (R. v. H. (J.), [1999] E.W.J. No. 5454 (Eng. C.A.) at para. 8, 16) although frustration by an unskilled and immature parent is a far cry from the deliberate infliction of harm: R. v. Marks (1994), 1994 NLCA 9742, 91 C.C.C. (3d) 421 (Nfld. C.A.) at 430. (7) Evidence of a pattern of abuse is an aggravating factor: R. v. S.E.C., at para. 14,18. (8) Permanent injury to the child increases the seriousness of the crime: R. v. Bighead, [2003] S.J. No. 335 (Sask. C.A.) at para. 12-4; P. (C.), Re, [2006] EWCA Crim 3019 (Eng. C.A.) at para. 7. (9) Summoning medical assistance promptly for the injured child tends to mitigate the severity of the circumstances: Habib, at 561; R. v. H. (J.), at para. 14; R. v. Y., [1998] E.W.J. No. 2542 (Eng. C.A.) at para. 8, 10-11. (10) Post arrest acknowledgement of anger control problems and voluntary steps toward addressing control measures can serve to temper the sentence to be imposed: P. (C.), Re, at para. 8, 11; R. v. Carle, at para. 10; R. v. Wigley, 2005 ABCA 295, [2005] A.J. No. 1191 (Alta. C.A.) at para. 3; R. v. Baldwin, [2002] N.S.J. No. 211 (N.S. S.C.) at para. 4-5, 11-12, 43 (22-yr.-old offender with ADD taking no steps in 2 1/2 yr. to assist in controlling his emotions). (11) As with most crimes, remorse of the offender, contributes to mitigation of sentence.

[35] In R. v. McInroy, [2014] O.J. No. 2186, referencing R. v. A.N.C., [2006] O.J. No. 3144, the court spoke to the need for denunciation:

[17] ... cases of child abuse are ones where the effective denunciation of the actions involved is only accomplished by the imposition of a term of imprisonment. Citizens of this community would, in my view, expect that our courts would send the clearest possible message that the physical abuse of children is conduct that simply will not be tolerated because of the serious jeopardy it visits on the weakest and most defenceless among us.

[36] In R. v. Habib, 2000 ONCA 16824, [2000] 147 C.C.C. (3d), the Crown argued that a conditional sentence order was inappropriate only in that it would not adequately address denunciation and general deterrence (as is the case herein). However, the Court of Appeal disagreed:

[12] Again, we do not agree. Just as we cannot exclude the conditional sentencing possibility from categories of offence, we cannot do so for subcategories such as all Shaken Baby Syndrome cases. While there is no doubt that the assault of an infant will always be a very serious matter, the appropriate sentence must depend on the particular facts in each case.

[37] The Crown herein argues that Habib, supra, is distinguishable in that Ms. Habib had an otherwise spotless record when caring for children, whereas S.B. needed counselling. Also, Ms. Habib had a glowing presentence report, whereas S.B.’s presentence report has hopeful tones but notes some challenges that she faces.

[38] It must be noted, however, that Ms. Habib was convicted of aggravated assault by a jury after a complicated trial that involved multiple experts. S.B. has entered a guilty plea to the lesser offence of assault causing bodily harm.

[39] In R. v. Sinclair, 2010 MBCA 105, the Manitoba Court of Appeal addressed the sentencing principle of totality, writing:

[19] In setting out the reasoning behind the totality principle, Chartier J.A. in Reader, stated the following (at para. 27):

It must be remembered that at this stage of the sentencing process, the purpose of this last look is to ensure that the total sentence respects the principle of proportionality (set out in s. 718.1 of the Code) by not exceeding the overall culpability of the offender. This requires an examination of the gravity of the offences, the offender's degree of guilt or moral blameworthiness with respect to the crimes committed and the harm done to the victim or victims. As was stated by Lamer, C.J.C., in R. v. C.A.M., [1996] 1 S.C.R. 500, 1996 SCC 230 (at para. 40):

... Indeed, the principle of proportionality in punishment is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may only be imposed on those actors who possess a morally culpable state of mind. In discussing the constitutional requirement of fault for murder in R. v. Martineau, [1990] 2 S.C.R. 633, 1990 SCC 80, at p. 645, I noted the related principle that "punishment must be proportionate to the moral blameworthiness of the offender," and that "those causing harm intentionally [should] be punished more severely than those causing harm unintentionally". ....

[40] I find that S.B.’s moral culpability was reduced to some degree by the various mental health issues that she was facing at the time in question, in particular her struggles with post partum depression.

[41] In R. v. E.(D)., [2005] O.J. No. 2589 (S.C.J.), Justice Gauthier wrote that:

[15] The imposition of a sentence is not vengeance, and it is not a visceral reaction to the offence. Rather, it involves a consideration of the circumstances surrounding the offence, circumstances of the offender, the vulnerability of the victim, the harm itself, among other factors. It involves the balancing of such factors to arrive at a sentence which is fair, that is, which is proportionate to the gravity to the offence and the degree of responsibility to the offender.

Conclusion

[42] I do not have a joint submission to consider.

[43] Noting the factors identified above, I find that there are special mitigating circumstances that warrant the imposition of a conditional sentence order.

[44] The appropriate sentence, in all of the circumstances is one of 15 months, to be served in the community, to be followed by the maximum term of probation of 36 months, a s. 110 order for 10 years and a DNA order.

Released: March 23, 2021 Signed: Justice Angela L. McLeod

[^1]: I differentiate this case from the ‘Shaken Baby Syndrome’ or ‘abusive head trauma’ cases as those result in serious brain injury, in addition to broken limbs. See The Mayo Clinic at https://www.mayoclinic.org/diseases-conditions/shaken-baby-syndrome/symptoms-causes/syc-20366619