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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
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
DATE: 2023 07 13 COURT FILE No.: Toronto East, Scarborough 4813 998 21 35000799
BETWEEN:
HIS MAJESTY THE KING
— AND —
R.P.
Before: Justice R. Wright
Heard on: April 18, 2023 Reasons for Sentence released on: July 13, 2023
Counsel: B. Olesko, counsel for the Crown E. Willschick, counsel for the defendant R.P.
Reasons for Sentence
R. WRIGHT J.:
[1] Following a trial, I found R.P. guilty of four offences on J.T., the six-year old son of her spouse, who was in her care for approximately five-months during the COVID-19 pandemic: 1) assault causing bodily harm for injuries to his pelvic area and scrotum; 2/3) assault with a weapon (a stick) and assault (her hand) for injuries to his buttocks; and, 4) assault with a weapon for injuries to his back caused by a belt.
[2] The Crown proceeded summarily. The Crown submits that a fit and appropriate sentence for these offences is four-years jail. The Crown asks that I impose consecutive sentences in order to fashion this sentence, and submits that consecutive sentences are appropriate given that the abuse occurred on separate dates.
[3] The Defence submits that a sentence of less than two years is the fit and appropriate sentence and that the jail sentence should be served conditionally in the community.
[4] For the reasons that follow, I am of the view that the statutory requirements for a conditional sentence are not met in this case, that consecutive sentences are appropriate, and that a penitentiary sentence of three years is necessary to give effect to the goals of sentencing at play.
Facts
[5] In March of 2020, J.T. was sent by his father to live with Ms. R.P., in part for her facility with English in order to help him with on-line schooling. J.T. was six-years old. Ms. R.P. was also caring for her own two young children. The children were seeing their father on some weekends, but this visitation was inconsistent.
[6] J.T. was removed from Ms. R.P. on August 16, 2020. In the approximately five months that he had been with her, he had received a number of significant injuries. Most serious are injuries to his pubic area and scrotum that were caused by burning with a heated implement. Second, there are injuries to his back that were caused by a looped belt. Finally, there were significant bruises to his buttocks caused by striking with a stick and hand. These injuries could not be conclusively dated. The injuries to the buttocks were likely caused only days to a week prior to their presentation. The injuries to the pubic area showed hyperpigmentation, which is usually seen within weeks to months following the healing of an injury. The injuries to the back showed both hyper and hypopigmentation, which is usually seen within weeks to months following the healing of an injury. Some of these marks were fainter than others. This evidence supports the inference that these injuries were not inflicted at the same time.
[7] Further, J.T.’s evidence was of different events of abuse over time. The injuries support that evidence. I am satisfied beyond a reasonable doubt that Ms. R.P. caused these injuries by repeated abuse over a period of time leading up to August 16.
[8] While Ms. R.P. had sought some medical treatment for other injuries to J.T.’s face earlier in the summer, she did not seek any medical aid for these injuries.
[9] The expert evidence, which I accept is proven beyond a reasonable doubt, was that the hyper and hypopigmentation to J.T.’s back and pubic area may last for years.
Victim Impact Statements
[10] I have three impact statements: one from J.T. and one from each of his maternal grandparents, who now have custody of him. They detail the significant psychological suffering J.T. has experienced as a result of this abuse including bed wetting, difficulty sleeping, and his fear of seeing Ms. R.P. again. They also demonstrate the impact that these offences had on J.T.’s grandparents directly, including their emotional impact at seeing the injuries to J.T., and their on-going psychological trauma.
Offender
[11] Ms. R.P. is 28-years old. She has no prior criminal record. I have read the Pre-Sentence Report. The Report details Ms. R.P.’s health difficulties, including a thyroid condition and diabetes. While the Report details some of the stresses that Ms. R.P. was facing at the time of these offences, and some family history of abusive behaviour, there is nothing in the Pre-Sentence Report that would provide any explanation for Ms. R.P.'s actions.
[12] It is also of concern that Ms. R.P. did not express any remorse for her actions to the author of the Report.
[13] Ms. R.P. has recently begun working three days per week as a custodian, working between 12 and 15 hours per week. It is to her credit that she has obtained this employment.
Principles
[14] Section 718 of the Criminal Code directs me to impose a just sanction that will achieve the objectives set out in that section, which include denunciation, deterrence, rehabilitation, the separation of offenders from society (where necessary), making reparations, and to promote a sense of responsibility in offenders and acknowledge the harm they have caused to the victim and society.
[15] There is no group in our society that is more defenceless and therefore more deserving of protection than children, particularly those too young to advocate for or protect themselves. Children rely on society generally for protection; they rely particularly on their parents or those standing in place of a parent for such protection. When such a caregiver abuses her duty to provide that protection it represents conduct that is particularly reprehensible because it exposes innocent and extremely vulnerable members of our society to harm at the hands of the very people whom they ought to be able to trust the most.
[16] That principle is codified as one of the sentencing principles set out in s. 718.2 of the Code. Section 718.2 states, in part:
A court that imposes a sentence shall also take into consideration the following principles:
a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the forgoing,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
shall be deemed to be aggravating circumstances.
[17] In this case, Ms. R.P. both abused a six-year-old boy that she was standing in as a parent for and she abused a position of trust. The abuse of trust was made more impactful due to the COVID-19 Pandemic and the infrequency with which J.T. was seeing his father, other family, or other adults. Because of the isolation of everyone, but specifically of J.T. from access to his grandparents, Child Services workers, teachers, or peers, Ms. R.P.’s position of trust was increased. This was more than the typical position of trust of a parent; Ms. R.P. had complete control of almost all aspects of J.T.’s life. She had a duty to nurture him, not to physically abuse him.
[18] I have been referred to a number of cases regarding the appropriate range of sentence to be imposed. The general principle respecting offences involving the abuse of children is set out in R. v. C.M.R. (2004), 197 C.C.C. (3d) 566 (Ont. C.A.) where Cronk J.A. said at para. 16, “[a]s well this Court has long emphasized that the imposition of substantial sentences is essential to meet the purposes of sentencing in order to protect defenceless children from mistreatment by their parents or other caregivers.”
[19] In R. v. McCauley, [2007] O.J. No. 1593, at para. 28, Hill J. provided a non-exclusive list of certain principles that have emerged in sentencing cases involving child abuse (that list was in the context of a shaken child, but, with some modification, assists in guiding my reasons today):
(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 (C.A.) at 2-3; R. v. Cudmore (1972), 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. S.E.C., [2003] B.C.J. No. 1768 (C.A.) 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), 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 (C.A.) at para. 7-10), a conditional sentence may be imposed where special mitigating circumstances exist: R. v. Habib, at 561-2; R. v. Carle, [2001] B.C.J. No. 1797 (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 (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. J.H., [1999] E.W.J. No. 5454 (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), 91 C.C.C. (3d) 421 (Nfld. & Lab. 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. G.B., [2003] S.J. No. 335 (C.A.) at para. 12-4; R. v. C.P., [2006] E.W.C.A. Crim. 3019 at para. 7. (9) Summoning medical assistance promptly for the injured child tends to mitigate the severity of the circumstances: R. v. Habib, at 561; R. v. J.H., at para. 14; R. v. Y., [1998] E.W.J. No. 2542 (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: R. v. C.P., at para. 8, 11; R. v. Carle, at para. 10; R. v. Wigley, 2005 ABCA 295, [2005] A.J. No. 1191 (C.A.) at para. 3; R. v. J.D.B., [2002] N.S.J. No. 211 (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.
[20] As noted by Hill J., the paramount objectives in cases of this nature are general deterrence and denunciation. Deterrence is based on the premise that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence. General deterrence is an established sentencing objective: R. v. Bissonnette, 2022 SCC 23, at para. 47. It may be supposed as a matter of common sense that there is a correlation between the deterrent effect of a sentence and its length. However, many people would be deterred by the imposition of any jail sentence, regardless of its length.
[21] The objective of denunciation is distinct from that of deterrence. Denunciation has a communicative function, as was explained in R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 81:
The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”.
[22] While deterrence and denunciation are the paramount sentencing objectives in cases such as this, the principle of rehabilitation cannot be ignored. I agree with the Crown that Ms. R.P. has shown no remorse. However, that alone does not mean that rehabilitative potential does not exist. It cannot be forgotten that Ms. R.P. is a first-time offender. She has shown for many years that she is capable of being a law-abiding member of the community. The Pre-Sentence Report further supports her rehabilitative potential.
[23] I am mindful of the guidance of the Court of Appeal that, generally, for a first offender, the principles of individual deterrence and rehabilitation should be stressed and the principles of general deterrence and denunciation should play a less dominant role: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at pp. 543-44; R. v. Tan, 2008 ONCA 574, at para. 32; R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578, at paras. 30-31; R. v. Thurairajah, 2008 ONCA 91, at paras. 41-42; R. v. Mohenu, 2019 ONCA 291, at para. 12. However, for crimes of significant personal violence such as those Ms. R.P. has committed, the objectives of general deterrence and denunciation gain prominence.
[24] The sentencing objectives, including denunciation, deterrence and rehabilitation, are subordinate to the fundamental purpose of sentencing as set out in s. 718 of the Code, which is “to protect society.” Rehabilitation, where a prospect of it exists, goes some way towards achieving that goal, even in cases where deterrence and denunciation are paramount. It follows from this that, where possible, a sentencing court should avoid imposing a sentence that deprives the offender of hope or interferes with rehabilitation.
[25] Offences that arise out of the same transaction are typically served concurrently, or at the same time. Sentences for multiple offences may include that they be served consecutively, including when the offences do not arise out of the same event or series of events (See s. 718.3(4) of the Code). Generally, if offences occurred at separate occasions or where the punishments serve different societal or legal interests, it will be appropriate to order that they be served consecutively. The Court should consider the timeframe of offences, the similarity of offences, whether a new intent broached each offence, and whether the total sentence is fit and proper.
[26] In R. v. Sinclair, [2010] MBCA 105, the Manitoba Court of Appeal addressed the 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]](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii230/1996canlii230.html) (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, 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”. ...
[27] Finally, as to a Conditional Sentence Order (“CSO”), a CSO is available if there is no minimum punishment prescribed, the offence does not fall into limited specific offences (which, these offences do not), I impose a sentence of less than two years, and it would not endanger the safety of the community and is consistent with sentencing principles/purposes (ss. 718-718.2).
Analysis
[28] As has been said in many of the cases to which I was referred by counsel, and which I believe counsel acknowledged in submissions before me, cases of child abuse like this one are ones where the effective denunciation of the actions involved is only accomplished by the imposition of a term of imprisonment.
[29] There are many aggravating factors in this case. There are the statutorily aggravating features of violence on a child and the abuse of trust, which, was compounded due to COVID-19. There are the marks on J.T. that may last for many years as a constant reminder of the abuse he suffered. There are injuries to his pelvic area and scrotum, which represent an attack on his sexual integrity. There is the use of multiple weapons to abuse J.T.: a belt, a stick, and a heated implement. I include in the aggravating features the fact that there were multiple assaults on J.T. that were occasioned at different times. To the extent that I refer to this as an aggravating factor, I am specifically considering it in relation to the request for consecutive sentences.
[30] The Crown submitted I should include as an aggravating feature that Ms. R.P. isolated J.T. Certainly, there were some features of isolation in the evidence I heard. However, I am not satisfied beyond a reasonable doubt that she intentionally isolated J.T. In my view, it is more appropriate to consider this evidence in the context of the seriousness of the breach of trust as I have already outlined.
[31] There is little, in my view, that is mitigating. I agree that Ms. R.P. has much rehabilitative potential. I am also considering her work to better herself with schooling, and the support she has from her family, and the recent employment she has obtained. I am mindful of her health concerns and have considered that custodial time will be more difficult for her than it would be for someone without those health issues. She has not demonstrated any remorse; that is absent before me as a mitigating factor.
[32] The Defence submitted that, as part of mitigation, Ms. R.P. got J.T. medical assistance. While she got medical aid for some of his injuries, it is those injuries that I found might have been accidental that she sought help for. The inflicted injuries that I have described in these reasons do not appear to have been treated. I do not consider her getting J.T. medical aid for the other injuries as a mitigating feature.
[33] I have also considered the Defence submission that Ms. R.P. may have committed these offences under some level of duress, or due to the pressures and stresses of the pandemic. I have no evidence to support this. Nothing in the Pre-Sentence Report relates to this. The evidence I have received on sentence suggests that Ms. R.P. did not abuse her children, only J.T. Unlike some of the cases counsel referred me to, this is not a case of an inexperienced caregiver injuring the child out of frustration or stress. This is abuse of her non-birth child who had been placed in her care.
[34] I do not believe that a CSO would be consistent with the fundamental purposes and principles of sentencing, nor do I believe it is appropriate to impose a sentence of less than two years. In particular, I do not believe that a either a CSO or a sentence of less than two years achieves the necessary objectives of deterrence and denunciation.
[35] Citizens of this community expect our courts to send the clearest possible message that physical abuse of children will not be tolerated because of the harm it visits on the weakest and most defenceless among us. As Lamer C.J. noted in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), at para. 106, “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.” Given the aggravating features and the lack of mitigating features I have outlined here, this is one such case.
[36] In considering the appropriate length of sentence and proportionality, I have considered the cases counsel referred me to:
(1) R. v. A.N.C., [2006] O.J. No. 3144 - Sentenced to 3 years jail. Aggravated assault. Victim was three years old. Injuries were multiple fractures over a period of time. The accused had a record, including a prior CSO that she had breached; (2) R. v. McCauley, [2007] O.J. No. 1593 - Sentenced to 12 months jail and 3 years Probation. Aggravated assault. Victim was an infant. Injuries were caused by shaking and included life-threatening brain injury. Isolated event of abuse. Offender was remorseful and diagnosed with ADHD and had poor impulse control; (3) R. v. G.S.J., [2007] O.J. No. 5079 - Sentenced to 7 years jail. Aggravated assault, assault with a weapon, and criminal negligence causing bodily harm. Victim was two-years old. Injuries were scald burns and whippings. The offender had no criminal record. Court found a pattern of intentional behaviour and abuse over the course of a few weeks; (4) R. v. McInroy, 2014 ONSC 2843 - Sentenced to 2 years less a day jail and 3 years Probation. Aggravated assault. Victim was an infant. Injuries were fractures caused by twisting and a liver injury. Not an isolated incident of abuse but the offender sought medical aid for the victim; (5) R. v. N.F., [2015] ONCA 51 (upholding a sentence of McWatt J.) - Sentenced to 20 months jail and 3 years Probation. Victim was 10-years old. Injuries were burns from a hot iron. Abuse was not ongoing; (6) R. v. S.G., [2011] O.J. No. 1604 - Sentenced to 2 years jail and 3 years Probation. Aggravated assault. Victim was two years old. Injuries were bruising to back, abdomen, arms and legs, as well as fractures. The offender had no record, was remorseful, and had completed some programing; (7) R. v. S.B., 2021 ONCJ 162 - Sentenced to 15 months jail (CSO) and 3 years Probation. Assault causing bodily harm. Victim was an infant. Injuries were fractures that had partially healed by the time medical assistance was sought (approx. a month). The offender had no record, pled guilty and was remorseful. She had mental health issues, reduced cognitive capacity, and had suffered post-partum depression, which the Court found reduced her moral culpability; and, (8) R. v. Habib, [2000] 147 C.C.C. (3d) (Ont. C.A) - Upheld a sentence of 2 years less a day (CSO) and 3 years Probation. Aggravated assault. Victim was 18 months old. Injuries were a brain injury, skull fracture and serious eye injuries caused by shaking. Offender had no prior record, exemplary reports, and had sought medical aid for the victim.
[37] In comparison to those cases, J.T. was six-years old. He was subjected to multiple incidents of physical abuse, warranting the imposition of consecutive sentences. He was completely dependent on Ms. R.P., who abused that position of trust. While not the same as permanent injuries, he has long-lasting markings. Some of those injuries/markings are to his pelvic area and scrotum, interfered with his sexual dignity and may continue to do so as those markings remain. Three separate weapons were used to inflict injuries on J.T. Ms. R.P. is a first offender with good rehabilitative potential, despite the lack of any demonstration of remorse.
[38] Considering the aggravating and mitigating features before me, the principles of sentencing at play, and bearing in mind the principles of restraint and totality, I am satisfied that a fit sentence for Ms. R.P.'s abusive behaviour is three years jail. That term will be composed of a mixture of consecutive and concurrent sentences as follows:
(1) For the assault causing bodily harm the sentence is 18-months jail; (2) For the assault with a weapon, the belt, the sentence is 12-months jail, consecutive; (3) For the assault with a weapon, the stick, the sentence is 6-months jail, consecutive; (4) For the assault simpliciter, the sentence is 3 months jail, concurrent.
[39] Assault causing bodily harm and assault with a weapon are primary designated offences for purposes of the DNA provisions of the Criminal Code. I therefore order that Ms. R.P. provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act in relation to these charges.
[40] S. 110 Order: my findings include that Ms. R.P. used multiple weapons in her abuse of J.T. A s. 110 Order is available where violence was used. I will impose a s. 110 Order, although I am not satisfied that the maximum duration is necessary in these circumstances. I hereby prohibit Ms. R.P. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 5 years from her release from prison.
[41] S. 737 of the "Code' requires that every offender "shall pay" the victim surcharge. A Court that is not imposing it must give reasons. It would be $300. The Court may on application of the offender or on its own motion, order that the offender pay no victim surcharge or a reduced amount if satisfied that the victim surcharge would cause undue hardship to the offender. Undue hardship means the offender is unable to pay a victim surcharge on account of the offender’s precarious financial circumstances, including because of unemployment, homelessness, lack of assets or significant financial obligations toward dependants – but imprisonment alone does not constitute undue hardship.
[42] Given Ms. R.P.'s financial obligations to her dependents, who are not being assisted by their father financially, and the jail sentence I am imposing, and her only recently gained employment status, I am satisfied that imposing the victim surcharge would be an undue hardship under the circumstances and in this case I order that the victim fine surcharge not be imposed.
Released: July 13, 2023 Signed: Justice R. Wright
