COURT FILE NO.: 18-M7908 DATE: 2022/02/28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen – and – Danielle Leblanc Accused

Counsel: Meaghan Cunningham for the Crown James Foord and Brandon Crawford for Ms. Leblanc

HEARD: December 7, 2021.

REASONS FOR SENTENCE

ANNE London-Weinstein J.

[1] Danielle LeBlanc was originally charged with first degree murder along with her common law spouse Paolo DeSousa in the death of Mr. DeSousa’s 81-year-old mother, Maria DeSousa.

[2] Maria DeSousa was dead for two days before Ms. LeBlanc and Mr. DeSousa brought her body to Montfort Hospital. Mr. DeSousa, 40, pleaded guilty before me to second degree murder. Ms. LeBlanc, 36 at the time, was described in an article by Ottawa Citizen reporter Gary Dimmock as looking remarkably calm when she was formally charged with first degree murder. Her nose and brow were bandaged due to the injuries she received at the hands of Mr. DeSousa.

[3] The Crown withdrew the murder charge against Ms. Leblanc and laid one count of being an accessory after the fact to murder. This withdrawal of the murder charge took place after Ms. Leblanc gave a statement to police. That statement confirmed what had actually happened to Ms. DeSousa. As a result of this turn of events, Mr. DeSousa then entered a plea of guilt to second degree murder.

[4] The defence sought to challenge the unavailability of a conditional discharge as a potential sentence to accessory after the fact to murder given the particular circumstance of this offender. The parties inquired as whether the court would under any hypothetical circumstance impose a discharge to the offence of accessory after the fact to murder. Upon receiving my response, the Crown withdrew the accessory after the fact charge and laid the current obstruction of justice charge.

[5] Ms. Leblanc pleaded guilty to a single count of obstruction of justice. The facts underlying the plea are also consistent with the plea to accessory after the fact to murder.

[6] The parties filed an agreed statement of facts upon which the plea of guilt was based.

Agreed Statement of Facts:

[7] Paola DeSousa and Danielle Leblanc began dating in 2006. In July 2012, they began renting the unit at 277 Parkrose Private in Ottawa. In December 2012, Mr. DeSousa’s mother, Maria DeSousa, moved in with them. From this point on, Paolo DeSousa was responsible for her care. Previously, she had been living in Kingston with her other son Fernando DeSousa or sometimes with her daughter Marielle Andrews-Turner. At the time of her death in February 2018, Maria DeSousa was 80 years old. Mr. DeSousa was reported to have had a close and loving relationship with his mother growing up and as an adult. Danielle Leblanc said that she believed Mr. DeSousa loved his mother.

[8] Prior to moving in with Mr. DeSousa and Ms. Leblanc, Ms. DeSousa had experienced physical and mental health issues and had sought and received medical treatment for those issues in Kingston on many occasions. However, after moving to Ottawa, Ms. DeSousa eventually ceased visiting doctors and taking previously prescribed medication. She withdrew from social circles and did not take telephone calls from other family members. By February 2018, her health had deteriorated further. Her eyesight was failing, which impacted her mobility, and she was becoming incontinent. Maria increasingly required assistance with her daily routine, which was almost exclusively provided by Paolo DeSousa.

[9] In the months leading up to February 2018, Mr. DeSousa grew increasingly frustrated with his mother. He felt she was not making an effort to get better, and he would often tell her that she needed to actively participate in life since she was still alive. In the weeks leading up to early February 2018, Danielle Leblanc witnessed an incident where Paolo DeSousa yelled at Maria, alleging that she had abused him when he was a child. He slapped Maria and pulled her hair, while saying “remember when you hit me?”

[10] Throughout 2017 and the early part of 2018, the relationship between Paolo and Danielle became strained, exacerbated by Mr. DeSousa’s belief that Ms. Leblanc had been unfaithful. Mr. DeSousa became jealous and emotionally and physically abusive towards Ms. Leblanc. At times he would strike her or throw things at her, causing injury to her or damage to the house.

[11] This violence increased in the months leading up to February 2018. On Thursday, February 8, 2018, Mr. DeSousa whipped Danielle Leblanc with the cord of a vacuum cleaner. She did not know why he did this. Sometime later that day, he came up to her while she was sitting on the futon in the living room and he smashed a glass jug into her face, causing a broken nose and a cut to her face that would ultimately require numerous stitches.

[12] While Ms. Leblanc was lying on the couch, bleeding and recuperating after this attack, Paolo DeSousa and Maria DeSousa went upstairs. Ms. Leblanc believed it was because Ms. DeSousa had to go to the washroom.

[13] Sometime later, Ms. Leblanc followed them upstairs. She saw Maria DeSousa standing in the bathtub and Mr. DeSousa spraying her with water, so she inferred that Ms. DeSousa had soiled herself. Ms. Leblanc then witnessed Paolo DeSousa start striking his mother while she was in the bathtub, and then pull her out of the bathtub and continue striking her. At one point he was holding her up, and then he let her go and she fell to the ground. During this time, Paolo DeSousa was calling Maria a “lazy bitch”. He left that bathroom and told Ms. Leblanc to clean his mother up as she was bleeding.

[14] Ms. Leblanc seated Ms. DeSousa on the toilet and held her up while she started to clean some of the blood off of the older woman’s face. Maria DeSousa’s eyes were rolling back in her head and she did not seem to be completely conscious. Ms. Leblanc could hear Mr. DeSousa pacing around the house. Eventually, he came back upstairs. He pulled Ms. Leblanc out of the bathroom by her arm and began attacking his mother again inside the bathroom.

[15] Ms. Leblanc described Mr. DeSousa as a “Tasmanian Devil”—he was hitting and kicking his mother, who was prone on the ground. On at least one occasion, he stomped on her back. While he was doing this, he said, “You ruined my life—fucking lazy bitch—you want to die, fucking die already.” He eventually left the bathroom and Ms. Leblanc went in to check for a pulse on Maria DeSousa. At the time, she believed she felt something, but in retrospect, she believes she had only hoped she felt a pulse. Ms. Leblanc was terrified and in shock as a result of what she had just witnessed.

[16] Dr. Milroy, the forensic pathologist who conducted the autopsy, advised that Maria DeSousa died as a result of multiple blunt force injuries. The fatal injury was a liver laceration, most likely caused by stomping on her back. According to Dr. Milroy, Maria would have died quite rapidly (within a few minutes) after this injury occurred. As a result of microscopic changes in the brain, he was also able to say that she survived at least 35 minutes after the injury to her head was inflicted. Following the injury to her head, she would have been showing signs of decreased consciousness, as observed by Ms. Leblanc following the first attack.

[17] After some time, Paolo DeSousa returned upstairs, where Ms. Leblanc was still sitting with Ms. DeSousa’s body on the bathroom floor. He looked like he was going to come at Ms. DeSousa again, so Ms. Leblanc held out her hand and said “enough”. After Ms. Leblanc said this twice, Mr. DeSousa left and went back downstairs. Ms. Leblanc moved Maria DeSousa’s body to her bed and laid with her in the bed over the next number of hours.

[18] On a couple of occasions Mr. DeSousa came in and asked how Maria was. Initially, Ms. Leblanc responded with “she’s weak” or “she needs rest”. Eventually, sometime the following day (Friday, February 9, 2018), Mr. DeSousa realized his mother was dead. By this time her body was cold, and she was starting to bloat. Mr. DeSousa attempted to perform CPR, and then he and Ms. Leblanc put his mother in a bathtub full of warm water to try and warm up her body.

[19] Sometime between Friday night and Saturday morning, Mr. DeSousa and Danielle Leblanc discussed various ideas that could conceal the true circumstances of his mother’s death. They discussed driving Maria to the hospital and telling a false story that she had experienced a seizure, followed by a fall down the stairs the night before. They each came up with some of the details of this false narrative. Together, they cleaned up the blood and the scene. Ms. Leblanc participated in the cover up partly because she was afraid of another violent outburst from Paolo, the shame of being connected in any way to this horrific incident, and because she was unable to face the reality of what had happened.

[20] Shortly after noon on Saturday, February 10, 2018, Paolo DeSousa and Danielle Leblanc drove Maria DeSousa’s body to the Montfort Hospital. Both Paolo DeSousa and Danielle Leblanc made statements to medical staff at the Montfort Hospital, providing the false account of how Maria DeSousa sustained her injuries accidentally. Danielle Leblanc was treated for the serious injuries to her face.

[21] That evening, they each provided voluntary video-recorded statements to the police, again giving a detailed false account of how Maria DeSousa sustained her injuries. During her interview, Danielle Leblanc appeared fearful and the officer interviewing her suspected she was the victim of abuse. However, in response to repeated questions about this, Danielle Leblanc denied experiencing any abuse and maintained the false account of how Maria DeSousa sustained her injuries.

[22] Following the autopsy, Dr. Milroy concluded that Maria DeSousa died as a result of multiple blunt force injuries that could not be explained by a series of falls. He also concluded that she had already been dead for 12 to 36 hours by the time she was brought to Montfort Hospital on February 10, in contradiction to the timeline provided in the police interviews by Mr. DeSousa and Ms. Leblanc. Paolo DeSousa and Danielle Leblanc were both arrested for the murder of Maria DeSousa. A trial was scheduled to begin on March 30, 2020.

[23] On January 29, 2020, Danielle Leblanc provided a voluntary, under-oath video-recorded interview with the Ottawa Police. During this interview she disclosed for the first time the true circumstances surrounding the death of Maria DeSousa. On Saturday, February 10, 2018, the Ottawa Police Service initiated an investigation into the death of Maria DeSousa at the behest of the coroner, Dr. Lawrence, who attended to Maria DeSousa’s body when it was brought to the Montfort hospital. After examining Maria DeSousa’s injuries, Dr. Lawrence ordered a post-mortem examination. The attending coroner decides whether to order a post-mortem examination. The attending coroner does so after considering multiple sources of information, including any explanation provided by a witness to the injuries. Post-mortem examinations are not automatic for all deaths. Given the nature of those injuries in this case, Dr. Lawrence ordered a post-mortem.

[24] On February 10, 2018, both Paolo DeSousa and Danielle Leblanc provided video recorded interviews to the police. Det. Racine interviewed Danielle Leblanc on that date and suspected she may be a victim of domestic abuse because of the injury to her face. Det. Racine made efforts to explore why Danielle Leblanc had this injury and how Maria DeSousa had died. Danielle Leblanc provided a detailed (now known to be) false account of how she and Maria DeSousa sustained their injuries. She additionally failed to disclose any of the incidents of violence that Mr. DeSousa had brought upon her over the previous many months, including the vicious beating he had just committed causing her facial injuries. A video of this statement was played during the sentencing hearing and the video and transcript were made an exhibit on sentence.

[25] Danielle Leblanc’s false narrative about how Maria DeSousa died (which included that Maria DeSousa had a seizure in the bathroom and later fell down the stairs) matched what Paolo DeSousa told Sgt. St. John in a separate interview on February 10, 2018.

[26] On February 11, 2018, Det. Racine and Sgt. St. John visited the Comfort Inn to check on the well-being of Ms. Leblanc and relay information about the Victim Crisis Unit. Ms. Leblanc had spent the previous night confined with Paolo DeSousa. He continued to threaten and coerce her. The officers initially spoke to Paolo DeSousa. Sgt. St. John then spoke to Danielle Leblanc and asked about her facial injuries. Danielle Leblanc had a standoffish demeanour. She stated that if officers needed to contact them, they had their phones and would be at the hotel. Paolo DeSousa stood close by during this interaction.

[27] On February 12, 2018, Dr. Milroy conducted an autopsy and concluded that Maria DeSousa died as a result of multiple blunt force injuries. Dr. Milroy provide a timeline of Maria DeSousa’s death which contradicted the statements provided by Paolo DeSousa and Danielle Leblanc.

[28] On February 12, 2018, Paolo DeSousa and Danielle Leblanc were arrested for the murder of Maria DeSousa. On February 13, 2018, Det. Andrea Giampaolo interviewed Danielle Leblanc. Danielle Leblanc asserted her right to silence about the circumstances of Ms. DeSousa’s death. Det. Giampaolo asked about Danielle Leblanc’s injuries and Ms. Leblanc adamantly denied that she herself was the victim of violence.

[29] After Det. Giampaolo concluded her interview, Sgt. McGetrick entered the interview room and introduced herself, and emphasized that this was Danielle Leblanc’s opportunity to explain what happened to Maria DeSousa. Sgt. McGetrick tried to explore whether Danielle Leblanc feared Paolo DeSousa. Danielle Leblanc asserted her right to silence. A video of this interview was played in court during the sentencing hearing. Ms. Leblanc continually asserts her right to remain silent. Her face is still bandaged.

[30] Danielle Leblanc was jointly charged with the murder of Maria DeSousa and was remanded to custody. She remained in custody until December 10, 2018, at which point she was released on house arrest bail.

[31] On January 29, 2020, Danielle Leblanc provided a statement to Sgt. McGetrick, in which she detailed Paolo DeSousa’s murder of his mother and their actions afterwards.

[32] Maria DeSousa’s family suffered greatly as a result of her murder. The family has struggled with their grief and feelings of loyalty toward Paolo DeSousa, uncertain of whether or not to believe the false narrative story that Danielle Leblanc helped concoct.

[33] I note that this period of not knowing what happened would have ended when Mr. DeSousa entered his plea of guilt to second degree murder.

Position of the Parties:

[34] Both the defence and the Crown agree that Ms. Leblanc was a victim of domestic violence at the hands of Mr. DeSousa. Both agree that her moral blameworthiness is reduced as a result of being a victim of domestic violence. However, there is disagreement as to how that reduced moral blameworthiness should be reflected in the sentence imposed.

[35] The Crown seeks the imposition of a suspended sentence, a period of probation, community service hours and a DNA order. The Crown’s position acknowledges that Ms. Leblanc’s moral blameworthiness in this case is diminished due to the fact that she was a victim of domestic violence at the hands of Mr. DeSousa. The Crown also points to the fact that Ms. Leblanc spent 15 months in jail. The Crown argues that the gravity of the offence and the concomitant need to express denunciation and general deterrence makes the imposition of a discharge contrary to the public interest. The Crown points to the grisly and terrible facts of this case. Ms. DeSousa was an elderly woman who was beaten and stomped to death by her son. Ms. Leblanc lied about the circumstances of the death. It was two years before she disclosed what had truly happened.

[36] The defence asks that I impose a discharge in this matter in light of Ms. Leblanc’s reduced moral blameworthiness due to her being a victim of domestic violence. The defence has provided a report by Dr. Jaffe which explains how Ms. Leblanc’s actions are explained by the impact of what happened to her. She continues to seek treatment with her own psychologist as she has for three years. She has expressed great remorse. The defence argues that the objective gravity of this offence, within the context of other offences against the administration of justice, is at the low end on the spectrum.

[37] The issue is whether the gravity of this offence and the need to provide appropriate weight to deterrence and denunciation mandates the imposition of a sentence which will result in a criminal record. The Crown argues that the sentence must reflect the gravity of the offence and denunciation to those who might consider committing offences which strike against the heart of the criminal justice system. On the other hand, I am in receipt of an expert report which describes Ms. Leblanc as suffering from prolonged systemic domestic violence. There is a body of case law which draws into the question the importance of general deterrence as a sentencing objective in cases involving women who have been the victim of this type of domestic violence: see R. v. Whitten, 1992 CarswellNS 494, 110 N.S.R. (2d) 1448 (N.S. S.C.); R. v. Naslund, 2022 ABCA 6, at paras. 119-20.

[38] The crafting of an appropriate sentence requires that I give appropriate weight within the context of this case to all of the relevant sentencing objectives, including general deterrence and denunciation. Ms. Leblanc has already taken steps toward her rehabilitation, including counselling. Sentencing has been described as more of an art than a science. It requires judges to consider and balance a multiplicity of factors: see R. v. Parranto, 2021 SCC 46, 75 C.R. (7th) 217, at para. 9. The Supreme Court has indicated time and time again that sentencing is an individual process that is case specific and context driven. The sine qua non of sentencing is that the sentence be proportional to the circumstances of the offender and the offence.

Principles of Sentencing:

[39] The objectives of sentencing are set out in s. 718 of the Criminal Code: the protection of society and the maintenance of a just, peaceful and safe society through the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[40] Section 718.1 provides that the fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.

[41] It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances must be considered.

Aggravating and Mitigating Factors:

Aggravating Factors:

[42] The aggravating factors in this case include the nature of the offence itself which involves interference with the administration of justice in relation to first degree murder, the most serious crime in Canadian law. The impact that this deception had on the victim’s family is also an aggravating factor. Ms. Leblanc did not initially disclose to police what had happened to Ms. DeSousa, nor that she herself had been a victim of domestic violence. It was two long years before Ms. Leblanc finally gave a statement to police where she disclosed that Maria DeSousa had been murdered by her son. Trial dates had been set and considerable resources already expended in preparation for trial before the truth of what transpired emerged. Ms. Leblanc lied repeatedly and persistently in a statement she provided to police on February 10, 2018.

Video Statement:

[43] The video statement was played in court. Ms. Leblanc’s face was bandaged. She described her relationship with Mr. DeSousa as long and good. This was not true. She advised the detective interviewing her that Mr. DeSousa quit his job to take care of his mother and that he offered to help his mother with open arms.

[44] Ms. Leblanc told the detective that Ms. DeSousa had a seizure. She described being with Mr. DeSousa downstairs and hearing a “thunk, thunk, thunk” sound. She told the officer that they put something in Ms. DeSousa’s mouth to stop her from biting her tongue. None of this was true.

[45] She went into some detail when lying as to what actually happened. She lied about how she sustained the obvious injury to her face. Even when she was advised that the coroner and the pathologist had concerns regarding cause and time of death, she persisted in her lie to the officer. She said to the officer, “I am in shock and you are asking me if my statement’s inconsistent like. . . Like what the F I just lost my mother-in-law.”

[46] Ms. Leblanc said she absolutely had no injuries. This was patently untrue. She indicated that the injury to her face was due to her falling. She said she had a bruise on her shoulder. She admitted to cleaning up blood.

[47] Sgt. Nicole St. John entered the room to view her injuries as Ms. Leblanc was not comfortable showing them to the male officer. She maintained she just had a couple of bruises. Sgt. St. John looked at the bruise on her shoulder, then indicated that Ms. Leblanc had a bruise on the left side of her face. The yellow bruise was clearly visible on camera. Ms. Leblanc continued to try to deny that she had a bruise.

Mitigating Factors:

[48] The mitigating factors include the fact that Ms. Leblanc was a victim of severe domestic abuse for a prolonged period which impacted her judgment and actions. She also told Mr. DeSousa “enough” when he attempted to renew his beating of his 80-year-old mother. Ms. Leblanc has no criminal record and is a first offender. She has strong prospects for rehabilitation. She has made serious efforts at rehabilitation already. She is employed. She has a loving supportive family. The pre-sentence report in this case was positive. She also provided a statement, albeit two years after the homicide, describing what really happened. This statement no doubt contributed to Mr. DeSousa’s decision to plead guilty to second degree murder, which he did shortly thereafter. She served 15 months in jail before being released on bail. Dr. Jaffe’s report concluded that she suffered as a victim of domestic violence. He indicated that she was seemingly oblivious to how perilously close she had been to being a murder victim herself. She plead guilty. She expressed remorse to her therapist for her role in this matter.

Legal Framework:

[49] While the charge of accessory after the fact to murder was withdrawn and replaced with an obstruction of justice charge, the facts involve concealing from authorities what transpired in a murder. Ms. Leblanc interfered with the administration of justice. And while the investigation in this case was not deflected from its true course for any meaningful length of time, the risk that the due administration of justice could be defeated must be squarely addressed in the sentence imposed. In R. v. Wisdom, [1992] O.J. No. 3110 (Ont. Gen. Div.), at para. 30, Watt J., as he then was, wrote:

The factor or principle of superordinate importance in cases such as at present, in my respectful view, is that of general deterrence. The courts, whose task it is to ensure the due administration of justice, must devoutly set their face against and display their denunciation of any conduct, whether during the investigation or upon the trial of alleged offenders that seeks to or does interfere with it. Put shortly, we shall brook no interference, actual or attempted with the proper investigation of crime, as well as the proper trial of alleged offenders. Those who set out with such a purpose shall be punished, and severely. [Emphasis added.]

[50] I reviewed all of the cases provided to me by both counsel, including R. v. W.(R.E.) (2006), 205 C.C.C. (3d) 183 (Ont. C.A.); R. v. Crawford, 2018 ONSC 7582; R. v. Chouinard, [2005] O.J. No. 3143 (Ont. S.C.); R. v. Turpin, [1990] O.J. No. 1126 (Ont. Gen. Div.); R. v. Jayawardena; and R. v. Bedi, 2017 BCSC 292.

[51] In Crawford, the accused had a long criminal record which included several entries for violence and offences against the administration of justice. He violated a non-communication order. He was involved in advance of the murder of the victim. He hatched a plan with others to assault the victim. He was not coerced or forced into his role. He agreed to be paid in crack cocaine. He proceeded to clean the murder weapon in a manner that was intended to destroy its evidentiary value and linkage to the offence.

[52] In Chouinard, the accused was sentenced to a conditional sentence of 22 months after pleading guilty to accessory after the fact to manslaughter. The victim in that case was brutally beaten to death. Ms. Chouinard discussed the disposal of the victim’s body with others. She, along with others, directed the clean up and disposal of the body. She cleaned the murder scene and disposed of bloody clothing. The accused in Chouinard was 34 years of age with no prior criminal record. She had a horrendous childhood of abuse and had served seven months in custody.

[53] In R. v. Wehbe, 2012 ONCJ 653, the accused was a youthful first offender. Specific deterrence and rehabilitation were paramount factors of consideration in sentencing. He received an 18-month conditional sentence after pleading guilty to one count of attempt to obstruct justice contrary to s. 139(2) of the Criminal Code. He was observed cleaning a vehicle used in a homicide.

[54] In R. v. Lowe, the accused pleaded guilty to accessory after the fact to murder. The murderer in that case threatened to kill Mr. Lowe, his wife, and others if he did not cooperate and keep his mouth shut. As a result of these threats, he welded the lid of a barrel shut and transported the barrel containing a dead body to the disposal site. Mr. Lowe was 54 years of age and a diabetic. He had no criminal record. He retired from the military as a sergeant and was employed as a truck driver. He had good reason to fear the principal, who police believed to be responsible for as many as 14 murders. He was a criminal figure, well known to police, who had escaped conviction on some of the offences by threatening witnesses. The court found that, considering the exceptional circumstances and the period of 61 days incarceration which Mr. Lowe had already served, and making an allowance for the seriousness of the offence, the appropriate sentence was one year of imprisonment. The sentence imposed was served in the community.

[55] Given the unique nature of this case, the cases provided by counsel were of limited application to this case for two reasons. First, in all of the cases provided, the objective nature of the offending behaviour was far more serious than what Ms. Leblanc did in this case. More fundamentally however, the case before me is distinguished by the fact that Ms. Leblanc was suffering from the impact of sustained and serious domestic violence by Mr. DeSousa, at the time she committed this offence. This factor reduces the moral blameworthiness of Ms. Leblanc to a degree not found in any of the cases provided to be by counsel. This factor fundamentally impacts the proportionality analysis which the court must conduct.

[56] The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that the individual offender is not dealt with unjustly for the sake of the common good: see R. v. Priest, (1996), 110 C.C.C. (3d) 289 (Ont. C.A.), at p. 297-298.

Pre-sentence Report:

[57] A positive pre-sentence report was submitted. Ms. Leblanc described having a good relationship with her family. She met Mr. DeSousa ten years ago. They lived in Toronto until 2010 and then moved back to Ottawa.

[58] Ms. Leblanc reported that she did not see any red flags at the beginning of the relationship, or if she did see them, she dismissed them.

[59] She slowly became increasingly distant from friends and family over the course of the relationship. In 2017, Mr. DeSousa hit her. She was unrecognizable the next day. She was left with a scar under her eye. She felt this was a one-time incident and blamed herself for what happened.

[60] On an earlier occasion, they were at a bar and Mr. DeSousa spit on her and slapped her hard enough that she fell into the snow. Ms. Leblanc blamed this incident on being intoxicated.

[61] She dismissed the incident as not being significant to her friend and former roommate Ms. Tessier. Ms. Tessier also provided a letter of support at sentencing.

[62] Ms. Leblanc advised the author of the pre-sentence report that she attended a bachelorette party in Montreal and received a lap dance. She recalled feeling guilty about the dance and how much money she spent during the trip. She was distraught and the accused assumed she had cheated on him. Wanting the relationship to end, she lied and said she had cheated on him. He began to interrogate her as to what had happened. She then admitted she lied.

[63] The abuse became consistent after this incident. Mr. DeSousa would vent, throw things, hit her, pull her hair, punch her in the legs and ribs and squirt her with cold water. The varied forms of abuse melted together. Mr. DeSousa abused her regularly until the night of the offence. On the night of the offence, she was whipped with the electrical cord of their vacuum and smashed in the face with a water jug. Her injuries were so significant that she has permanent scarring across her eyebrows and down her nose.

[64] She felt traumatized, scared and in shock.

[65] Ms. Leblanc’s parents advised the author of the pre-sentence report that they were extremely concerned for her from the beginning of and throughout her relationship with Mr. DeSousa. Her mother expressed fear that she would one day receive a call from police advising that Ms. Leblanc was in the hospital. They did not know about the abuse at the time, but they both indicated that the relationship was controlling and unhealthy. Her friend, Ms. Tessier, expressed feeling worried for Ms. Leblanc and that she recognized red flags. For example, Mr. DeSousa would always drive the subject and pick her up afterward, even though the car belonged to her. She once noticed bruises on Ms. Leblanc’s body. Ms. Leblanc did not disclose any abuse and gave the impression she was in control of the situation.

[66] Ms. Leblanc completed one year of the general arts and science program at Algonquin College. She ultimately obtained a degree in graphic design. Upon graduation from college, she obtained full time employment with a non-profit organization. She worked as a graphic designer and helped train co-op students. The organization employing her eventually lost its funding and she was laid off. She obtained employment at a law firm in Toronto as a content manager. In 2008, she progressed from this law firm to another company where she was a content and graphic designer lead and eventually a program manager. She was permitted to work remotely from Ottawa when she and Mr. DeSousa moved back to Ottawa.

[67] The author of the pre-sentence report noted that despite having evidently been a victim of domestic violence, Ms. Leblanc took full responsibility for the offence. She became emotional when discussing her remorse and indicated that she felt terribly sorry for her role in it “right down to her core.”

[68] She described the offence as burning her soul and said “I am not a person who intentionally breaks the law. I am not here to break the law; I am here to help humanity. I would never in my wildest dreams think I would become part of something like this.”

[69] Her father had contacted police prior to the murder of Ms. DeSousa and asked if police could help his daughter. He was advised she was an adult and there was nothing that police could do.

[70] Dr. Bourgon, who is Ms. Leblanc’s treating psychologist, advised the author of the pre-sentence report that Ms. Leblanc has been working through her trauma during their sessions. He described her as being extremely compliant, low risk and presenting with absolutely no criminogenic factors.

[71] He indicated that the relationship between Ms. Leblanc and Mr. DeSousa as he understood it was very abusive and that this abuse progressed slowly over time, making it difficult for Ms. Leblanc to recognize it or to come to terms with it. He believed Ms. Leblanc now had a lot of insight into what happened. He believed she is still suffering with post-traumatic stress. He described Ms. Leblanc as having a very high sense of morality and responsibility. He stated that she was put in an impossible situation and that she is still struggling to come to terms with her involvement in the offence. Dr. Bourgon indicated his confidence that Ms. Leblanc would follow any conditions.

Report of Dr. Jaffe:

[72] Dr. Jaffe conducted a psychological assessment of Ms. Leblanc. Dr. Jaffe addressed the impact that the abuse the offender experienced at the hands of Mr. DeSousa may have had on her actions.

[73] Dr. Jaffe is a Professor of Education and the Academic Director of the Centre for Research and Education on Violence against Women & Children at the University of Western Ontario. He is the Director Emeritus for the London Family Court Clinic (formerly the Centre for Children and Families in the Justice System).

[74] For over 40 years, most of his research and clinical work has involved adults and children who have been victims of abuse and involved with the criminal, family and civil court systems. He has coauthored 10 books, 25 chapters and over 75 articles related to children, families and the justice system including Peter Jaffe, David Wolfe & Susan Wilson, Children of Battered Women, (United Kingdom: Sage Publications, 1990); Jaffe et al, Working Together to End Domestic Violence, (United States: Mancorp Pub, 1996); and Peter Jaffe, Nancy Lemon & Samantha Poisson, Child Custody and Domestic Violence: A Call for Safety & Accountability, (United Kingdom: Sage Publications, 2002).

[75] He has presented workshops across the United States and Canada, as well as Australia, New Zealand, Costa Rica and Europe to various groups including judges, lawyers, mental health professionals and educators. Since 1997, Dr. Jaffe has been a faculty member for the US National Council of Juvenile and Family Court Judges program, “Enhancing Judicial Skills in Domestic Violence Cases”. He has been an expert witness in three Ontario inquests into domestic violence, as well as one in both P.E.I. and Alberta. He is a founding member of Canada’s first Domestic Violence Death Review Committee through the Office of the Ontario’s Chief Coroner. Dr. Jaffe is currently working with over 50 academic and community partners across Canada on a national study on domestic homicide in vulnerable populations, funded by the Social Science & Humanities Research Council. The study involves an examination of risk assessment, safety planning and risk management strategies in domestic violence cases.

[76] Dr. Jaffe interviewed Ms. Leblanc via video conference on May 12, 19, 22 and 26, 2020, for a total of seven-and-one-half hours. She completed on-line psychological testing. Her parents were interviewed on May 19, 2020 for two hours, and Dr. Jaffe consulted with her current therapist, Dr. Guy Bourgon, on June 2, 2020 for a half hour.

[77] Dr. Jaffe also reviewed the following: police interviews with Ms. Leblanc dated January 29, 2020 and February 10 and 13, 2018; Summary of Statement with Mr. DeSousa dated February 10, 2018; Police Officer Statements dated February 20, 2018; Danielle Leblanc Facts on Guilty Plea to Accessory After the Fact to Murder— Section 240 Criminal Code.

[78] The report was organized into two sections—the first section provided a background on current knowledge about domestic violence and the common dynamics between victims and perpetrators. This section is based on Dr. Jaffe’s experience in the field over the past 40 years working with the police and court system as well as research in the field. The second section provides a synopsis of Ms. Leblanc’s family history and her relationship with Mr. DeSousa leading up to his murder of his mother.

[79] Dr. Jaffe noted that research has shown that perpetrators may threaten further harm if the victim engages with the police; women have reported further assaults even after arrests and incarceration.

Relationship with Mr. DeSousa as noted by Dr. Jaffe:

[80] Ms. Leblanc met Mr. DeSousa on an online dating site in 2006. He moved to Ottawa that year to live with Ms. Leblanc as her “roommate”. They lived together until Mr. DeSousa moved to Toronto to attend film school in 2007. At around that time they got into a fight when they were both intoxicated. She recalled that he pulled her out of the bar and spit on her to which she scratched his face in return. He then hit her and pushed her into the snow. The couple separated for a time. In 2008, Ms. Leblanc obtained a contract job in Toronto and shared accommodations with Mr. DeSousa while he was in school. Her parents believe she paid for his film school.

[81] In 2010 they moved back to Ottawa as Ms. Leblanc was able to transfer back with her job at Cisco Systems.

[82] Ms. Leblanc was the main breadwinner in the relationship and supported Mr. DeSousa financially. Mr. DeSousa did not have consistent or stable employment over the time they were together. Ms. Leblanc reported that their agreement was that she would support him through his dream of working in the film industry.

[83] Ms. Leblanc’s parents reported Mr. DeSousa to be a paranoid person who was suspicious of other people and the internet. He never had a credit card and all the bills were in Ms. Leblanc’s name. He created conflict within their family and threatened extended family members. When he visited their family cottage, he rarely shared a meal with them and was often on his own smoking cigarettes. Ms. Leblanc rarely drove her own car.

[84] Ms. Leblanc reported that Maria DeSousa moved in with the couple in 2014. What was initially supposed to be a short stay away from Kingston turned into several years as Ms. DeSousa’s health declined. Ms. Leblanc said that Mr. DeSousa loved his mother a lot and cared for her deeply. Ms. Leblanc wanted to support this with no questions asked. Ms. DeSousa did not speak much English.

[85] Ms. Leblanc indicated that the violence toward her escalated when Ms. DeSousa seemed to be giving up on life. Mr. DeSousa refused involvement with healthcare professionals for his mother, as he felt they overmedicated her in the past.

Overall Patterns of Abuse and Risk of Lethality for Ms. Leblanc:

[86] Dr. Jaffe indicated that Mr. DeSousa met Ms. Leblanc at a time in her life when she was vulnerable. She was an emerging young adult, trying to become independent from her parents. She was described by her parents as very empathic and giving, and she described herself as naïve. She was caring and avoided conflict.

[87] Over the course of the relationship, Mr. DeSousa demonstrated a pattern of jealousy, restricting Ms. Leblanc’s activities, and isolating her from her supports in a manner that slowly and subtly built up his power and control of her. Ms. Leblanc described some “flashing yellow lights” of his behaviour which faded away over time.

[88] What began initially as Mr. DeSousa’s difficulties with stress when Ms. Leblanc would leave the home, escalated into her feeling on edge and “walking on eggshells” in the year leading up to the homicide.

[89] Ms. Leblanc said that she gave her power away to accommodate his many insecurities.

[90] Mr. DeSousa restricted Ms. Leblanc’s daily activities outside the home. She reported that his authoritative tone of voice and berating began to morph into a “conscience” type of voice in her own head, and it was his opinions/voice in her head telling her to not do something. He often justified many of his actions with jealousy. For example, he provided a number of reasons why she should not go to yoga classes due to wearing tights and being in various positions in front of others.

[91] Mr. DeSousa was very jealous, to the point where Ms. Leblanc had to avoid looking anywhere but at the ground when in the grocery store, otherwise Mr. DeSousa would accuse her of looking at another man. In their intimate relations, Mr. DeSousa often put Ms. Leblanc down, comparing her to previous women he had been with and making her feel ashamed. Nearing the end of their relationship, Ms. Leblanc reported that intimate relations were used as a way to calm Mr. DeSousa down. The intimacy was gone.

[92] Mr. DeSousa’s behaviour and thinking were also at times erratic and marked with suspicion towards others. There were instances in their relationship where they suddenly and abruptly had to move due to Mr. DeSousa’s conflict with another person. Ms. Leblanc described that Mr. DeSousa had negative views toward medical care and he was paranoid, especially with regards to healthcare professionals treating his mother.

[93] Mr. DeSousa minimized his violent behaviour and rarely took responsibility for his actions. Ms. Leblanc felt that there were many instances of aggression outside of their relationship where Mr. DeSousa, in hindsight, “twisted” a story to escape accountability for his violent or threatening behaviour towards others. For example, Mr. DeSousa was charged with assault with a weapon after brandishing a knife at a bar in Toronto. Ms. Leblanc was his surety. Mr. DeSousa explained to Ms. Leblanc he was carrying a knife to protect himself and he was very intoxicated. He minimized his behaviour and provided Ms. Leblanc a rationale for his violent and aggressive actions.

[94] The erosion of the relationship with Ms. Leblanc’s family came to be in 2011, following an incident where Mr. DeSousa threatened Ms. Leblanc’s cousin. There were many incidents where Mr. DeSousa displayed aggressive behaviour toward Leblanc family members. Ms. Leblanc’s parents communicated to Ms. Leblanc that Mr. DeSousa’s behaviour was unacceptable and that they wanted him to take accountability for his actions and apologize before he would be allowed in their home or family cottage. Mr. DeSousa never apologized to the Leblanc family and they stopped speaking, but Ms. Leblanc retained contact with them. Mrs. Leblanc had a lengthy conversation with her daughter about her relationship and how she did not seem happy. Mr. Leblanc was so worried about his daughter’s safety that he went to the police for help in 2011/2012. He was told that there was nothing to be done as Ms. Leblanc was an adult and there was no reported physical abuse, leaving it to Ms. Leblanc to ask for the help herself. Her parents continued to be worried and wanted to be a source of safety for her daughter.

[95] In the year prior to the homicide, Mr. DeSousa’s coercion and violence towards Ms. Leblanc escalated. Ms. Leblanc described increasingly severe physical violence at the hands of Mr. DeSousa, often leaving her feeling frozen and also feeling like she was walking on eggshells to not trigger him. She recalled feeling responsible for calming Mr. DeSousa down. She made sure everything in the home was exactly how he wanted it to be.

[96] She did not engage in certain topics of conversation or offer any opinions as she knew what would set him off.

[97] Ms. Leblanc recalled increasing physical violence occurring in 2017, whereby Mr. DeSousa assaulted her to the point where her face was swollen beyond recognition. She recalled that she could not open her eyes for four days.

[98] He iced her face and gave her food. After this, Ms. Leblanc recalled many other instances where Mr. DeSousa assaulted her, including punching her, kicking and punching her legs, dragging her up the stairs by her hair and throwing objects at her. Ms. Leblanc recalled that the physical abuse varied in frequency but occurred at least every other week in the year leading up to the homicide. She did not leave her home as she worked remotely. She covered up the bruises with makeup and clothing when she did leave. These experiences of physical violence were very difficult for Ms. Leblanc to discuss, according to Dr. Jaffe.

[99] Mr. DeSousa’s aggression was easily provoked, and Ms. Leblanc was very aware about avoiding topics that she knew triggered him. Mr. DeSousa was very defensive and opinionated about certain topics (e.g., anything related to Portugal, world events or the food industry) and when he began talking about these things she would have to tread lightly because things could escalate quickly. He often “vented” for extended periods of time to Ms. Leblanc.

[100] Dr. Jaffe asked Ms. Leblanc if Mr. DeSousa had ever threatened or attempted to kill her. She replied that he had not. However, she went on to describe an incident where Mr. DeSousa held a knife to her throat as he told her the ways he could kill other people with a knife. Ms. Leblanc did not recognize this incident as a threat to kill her.

[101] Mr. DeSousa further isolated her from her family. Her mother opined that her daughter often sounded like Mr. DeSousa when she spoke. She appeared to be avoiding her parents. She cancelled a visit claiming car troubles and declined an offer to pick her up. She did not attend the family Christmas in 2017 or a planned visit to see her brother in Montreal. Her mother recalled that when she saw her daughter briefly in the weeks preceding the homicide, she was wearing a hoodie to cover up her skin.

[102] Dr. Jaffe wrote that Mr. DeSousa systematically beat Ms. Leblanc down to the extent that she lost her own voice. Ms. Leblanc did not report the abuse to anyone. She made excuses for his behaviour and covered up the evidence that he was abusing her. Mr. DeSousa increasingly isolated her from her family and friends. She recalled that she was simply trying to survive and was unable to even conceive of a logical plan to leave the relationship. She often felt responsible for provoking Mr. DeSousa’s aggression toward her. She was drowning and trying to stay afloat, all while trying to maintain full-time employment from home to support him financially. Ms. Leblanc, according to Dr. Jaffe, was chronically traumatized by Mr. DeSousa, and it was clear that any action she took had potentially severe consequences.

[103] Throughout the assessment, Ms. Leblanc described many abusive behaviours by Mr. DeSousa, indicating that there were many risk factors for her lethality that were present. Dr. Jaffe opined that “it is clear that if a professional had met with Ms. Leblanc prior to the homicide to assess her risk for being killed by Mr. DeSousa, it would have been evident that her life was in danger.”

[104] Dr. Jaffe cited from the report of an interdisciplinary expert panel to illustrate the perilous nature of Ms. Leblanc’s situation.

[105] The Ontario Chief Coroner has a Domestic Violence Death Review Committee (DVDRC) which is an interdisciplinary expert panel that reviews every domestic homicide suicide in the province.

[106] The purpose of the reviews is to identify potential recommendations that may prevent tragedies in similar circumstances in the future. This committee has been in existence since 2003 and has data on over 500 domestic homicides. Part of the process in the death review is to review risk factors associated with domestic homicides. The Ontario DVDRC has compiled 41 risk factors from the literature in this area and the prior reviews. In over three quarters of the Ontario domestic homicides, the tragedy appears predictable and preventable with hindsight since there are over seven well-known risk factors known to either friends, family, co-workers, police and/or other community professionals.

[107] In this matter, Dr. Jaffe indicated that Ms. Leblanc described 20 of the 41 DVDRC risk factors. Dr. Jaffe indicated that Ms. Leblanc was at high risk of being killed herself before Mr. DeSousa severely assaulted her and killed his mother.

Psychological Testing:

[108] Dr. Jaffe conducted the Personality Assessment Inventory (PAI) to provide an overall assessment of psychopathology and personality functioning. Ms. Leblanc’s scores relating to an assessment of factors which could distort the results of testing indicated that she was answering in a reasonably forthright manner and did not attempt to provide an unrealistic or inaccurate impression that was either more negative or more positive than the clinical picture would warrant.

[109] The PAI clinical profile reveals significant elevations across a number of different scales, suggesting Ms. Leblanc may be experiencing significant thinking and concentration problems, accompanied by prominent distress and ruminative worry. Ms. Leblanc is likely to be withdrawn and isolated, feeling estranged from the people around her. Since some of her conditions have been lifted, she is working on putting together a resume and is thinking about the type of job which would be reasonable to pursue. There are obvious limitations with a criminal record. It is important to her to be contributing member of her family and society.

[110] Dr. Jaffe noted that a number of aspects of Ms. Leblanc’s self-description suggest marked peculiarities in thinking and experience at a level of severity unusual even in clinical samples. In her interview, Ms. Leblanc reported that at times when she is around others and is triggered into thinking about something from her past, she feels that her thoughts are so loud that others can hear, though she knows they actually cannot.

Will the Imposition of a Conditional Discharge Result in a Proportional Sentence?

[111] A discharge can be imposed where it is in the accused’s interest and is not contrary to the public interest: see Criminal Code, s. 730(1).

[112] A discharge is in the accused’s interest. Her future employment will be impacted if she receives a criminal record. The issue is whether or not a discharge is not contrary to the public interest. I have determined that a discharge is not contrary to the public interest. The public can be presumed to be aware of the impact of domestic violence and the fact that Ms. Leblanc served 15 months in jail for this offence. A discharge would rarely, if ever, be viewed as reflecting the need for general deterrence and denunciation mandated by a particular offence. In this case, the offence is against the administration of justice, which normally mandates emphasis on general deterrence and denunciation as paramount sentencing objectives. However, the circumstances of this offence, and this offender are unique.

[113] If I were to place emphasis on general deterrence and denunciation within the circumstances of this case by imposing a criminal record, I would be crafting a sentence which is not proportional to Ms. Leblanc’s extremely low moral blameworthiness in this case. Ms. Leblanc’s personal circumstances as a victim of prolonged violence, who Dr. Jaffe described was close to being murdered herself, confine this case to its own facts.

[114] In this case, while the offence itself mandates emphasis on general deterrence and denunciation, the circumstances of the offender militate against too great an emphasis on those sentencing principles.

[115] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading “Fundamental principle”: see Criminal Code, s. 718.1. Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: Parranto, at para. 10, citing R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30. The principles of parity and individualization, while important, are secondary principles.

[116] 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.”: Parranto, at para. 11, citing Friesen, at para. 33.

[117] Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

[118] Counsel was unable to provide a similar a case where a similar offence was committed in similar circumstances. Ms. Leblanc was literally trapped with a murderer. At the time she first lied to the police about the circumstances of the death of Ms. DeSousa, she knew she was going to be spending the night alone with Mr. DeSousa. She had just witnessed him stomping his mother to death. He had smashed a glass vase over Ms. Leblanc’s head and whipped her with an electrical cord. Police were so concerned about her well being that they attended the hotel where she was staying with Mr. DeSousa to check on her.

[119] Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is “committed in unique circumstances by an offender with a unique profile”: Lacasse, at para. 58. This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. That is what occurred in this case. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case: see Parranto, at para. 12.

[120] Starting points or sentencing ranges have been described as “navigational buoys”: see Parranto, at para. 16. I have tried to demonstrate why the sentence imposed is proportionate to the moral blameworthiness of the offender and the gravity of the offence.

[121] As a sentencing judge, I must individualize the sentence in a way that accounts for both aspects of proportionality: the gravity of the offence and the offender’s individual circumstances and moral culpability. At the stage of individualized sentencing, the judge must consider all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 75.

[122] Those factors and circumstances may well justify a significant downward or upward.

[123] In considering whether appropriate weight has been given to the gravity of the offence in order to give effect to the principle of general deterrence and denunciation, I have considered the fact that Ms. Leblanc has already been punished through her own actions. She has served 15 months in jail. She was originally charged with first degree murder. Her status when she was charged with first degree murder was published in the media and she has been stigmatized as a result. Life with Mr. DeSousa was punishing, and he beat her. She stopped him when he was going to renew his beating of his 80-year-old mother. According to an expert in domestic violence, she was close to being murdered herself.

[124] The Criminal Code requires that a sentence speak out against the offence, but it may not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. Sentencing is also an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case: see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43.

[125] No one sentencing objective trumps the others and the relative importance of any mitigating or aggravating factors will push a sentence up or down the scale of appropriate sentences for similar offences. In this case, while the objective gravity of the offence was serious, given that it strikes against the administration of justice, the circumstances of the offender are compelling. Her moral blameworthiness is low.

[126] In Nasogaluak, the Court held that the circumstances of an alleged Charter breach that aligns with the circumstances of the offence or the offender such that they are pertinent to the sentencing regime may be relevant mitigating factors warranting a reduced sentence. The court also found that this was true for state misconduct which does not rise to the level of constituting a Charter breach but which impacts the offender: see Nasogaluak, at para. 3.

[127] The court held that resort to s. 24(1) of the Charter is not required to affect an appropriate reduction of sentence to account for any harm flowing from unconstitutional acts of state agents consequent to the offence charged. The court held that focusing on whether impugned acts constitute Charter breaches and relying on s. 24(1) of the Charter as the authority to reduce a sentence misapprehends the flexible and contextual nature of the sentencing process. The sentencing provisions of the Criminal Code, on their own, provide remedial protection to individuals whose rights have been infringed: see Nasogaluak, at paras. 47, 56.

[128] In the case before me, the factor which triggers an appropriate reduction in sentence is not the misconduct of the state, but the extremely low moral blameworthiness of the offender engendered by the fact that she had been the victim of extreme prolonged domestic violence. Her experiences at the hands of Mr. DeSousa impaired her ability to tell the truth about the murder of Ms. DeSousa.

[129] I have relied on the flexible and contextual nature of the sentencing regime in trying to resolve the competing sentencing principles in this case. In the end, I resolved the conflict in favour of the offender, as in my view, to do otherwise would result in a sentence which is not proportional. In assessing the weight which should be given to domestic violence in fashioning a proportional sentence, I have reminded myself that it is difficult for the lay person to comprehend the full impact of prolonged domestic violence on an individual.

[130] In R. v. Lavalee, [1990] 1 S.C.R. 852, at p. 889-890, the court noted that it is commonly thought that battered women are not really beaten as badly as they claim, otherwise they would have left the relationship. In this case, one might ask why Ms. Leblanc could not simply tell police what happened, or question her loyalty to Mr. DeSousa given the physical abuse she said she suffered. An alternative myth referenced in Lavalee is that women enjoy being beaten, that they a have a masochistic strain in them. The Court noted that each of these stereotypes may adversely affect consideration of a battered woman’s claim to have acted in self defence in killing her partner. Expert evidence can assist the jury in dispelling these myths. I quoted extensively from Dr. Jaffe’s findings in my reasons, as they were critical to my finding that Ms. Leblanc was a victim of serious and prolonged domestic violence whose moral culpability was significantly reduced as a result. The psychological effects of domestic violence are relevant to sentencing—in particular the question of moral blameworthiness, a component of the proportionality analysis: see R. v. Naslund, 2022 ABCA 6, at para. 98. Naslund was released while my decision in this case was on reserve. I advised counsel that I would be relying on the reasoning in Naslund, albeit in the context of our case, which involves an offence against the administration of justice. I invited submissions from counsel. Defence counsel had no additional submissions. The Crown responded that the reduced moral culpability of the offender was already accounted for in the Crown’s position of a suspended sentence and probation, community service hours and the 15 months Ms. Leblanc already served.

[131] In Naslund, at para. 105, the court referred to the early case of R. v. Chivers, [1988] N.W.T.R. 134 (S.C.), at p. 151-52, where de Weerdt J. characterized the matter in this way:

“[B]attered woman syndrome”. . . has as its hallmark a group, or “constellation”, of emotional reactions and personality adjustments which have developed as a reaction to stress over many years in a spousal relationship, in which the woman has suffered at the hands of the man. These reactions and adjustments are compendiously described as “learned helplessness”, in which the woman comes to act as if she cannot in any way free herself of the relationship even if objectively she can, completely trapped without possibility of escape, and waiting for the next inevitable beating or act of abuse against her by the spouse.

[132] In R. v. Tran, [1991] CarswellOnt 2306 (Ont. Gen. Div.), at para. 58, Watt J. (as he then was) wrote that the nature of the punishment imposed ought to take cognizance of the reality of prolonged domestic violence. The court referred to the sense of utter helplessness and emotional turmoil created in the mind of the battered spouse who causes death. In this case, the accused was guilty of obstruction of justice, rather than murder or manslaughter, but the same principles regarding the inability to act, and the loss of voice referred to by Dr. Jaffe in reference to Ms. Leblanc apply. In R. v. Craig, 2011 ONCA 142, 269 CCC (3d) 61, at para. 59, Doherty J.A. characterized the psychologically trapped battered woman as having substantially reduced moral blameworthiness.

[133] In addition to the consideration of reduced moral blameworthiness, the other important consideration is the reduced importance of general deterrence as a sentencing objective in the case of women who have experienced regular violence at the hands of their partner. In Naslund, the court cited with approval R. v. Whitten, 1992 Carswell NS 494, 110 N.S.R. (2d) 148 (N.S. S.C.), which found that general deterrence was essentially meaningless for those in the same position as a battered spouse like Ms. Whitten, who was regularly subjected to violence from her common-law partner. After Ms. Whitten pleaded guilty to manslaughter on a charge of murder for having stabbed her partner, the court said the following at para. 38 in opting for a suspended sentence:

General deterrence is supposed to stop like minded individuals from engaging in similar behaviour. The theory is that in ordering a period of incarceration, this will deter others from reacting as Ms. Whitten has reacted in this case. In an examination of the psyche and reactions of an abused woman, i.e. someone who has suffered long standing violence, I suggest that person cannot psychologically extricate themselves or stop at the right moment and say – “I must not do this because if I do I will go to jail”.

[134] Other decisions have also found that general deterrence has little application in cases involving women who have been similarly beaten down through prolonged, sustained and severe domestic violence: See R. v. Getkate, [1998] OJ No 6329 (Ont. Gen. Div.), at paras. 38-41; R. v. Cabrera, [2003] OJ No. 4510 (S.C.), at paras. 16-17.

[135] In this case, the result of the frequent violence visited upon her did not cause Ms. Leblanc to kill Mr. DeSousa, but it contributed to her concealing the true facts regarding how he had murdered his mother and beaten her.

[136] Ms. Leblanc has worked with a therapist to try and put her life back together. She came close to death according to Dr. Jaffe. She has post-traumatic stress as a result of what she has endured. In my view, to impose a criminal record which will impede her ability to restore her life, in the name of general deterrence when general deterrence has limited application in this case, would result in a sentence which is not proportional. Given the 15 months of imprisonment she experienced, her house arrest, the stigma of being publicly labelled a murderer, the ends of general deterrence have been more than satisfied given her low moral blameworthiness. I see no merit in branding her with a criminal record to follow her through the balance of her life. The court notes that the psychological and physical scars she carries from this ordeal will likely be with her for many years, if not the rest of her life.

[137] In the final analysis, given the systematic beating down that Ms. Leblanc endured, her inability to tell the truth immediately about what happened is understandable. That does not mean that her behaviour is excusable in law. She has suffered the consequences of the fact she has obstructed justice, despite how compelling her rationale for doing so was. I agree with Dr. Bourgon that she was put in an impossible situation. On the very day that her partner stomped his elderly mother to death, he also whipped Ms. Leblanc with an electrical cord and smashed a glass vase over her face. Dr. Jaffe’s expert opinion was that she was at a significant risk of being murdered by Mr. DeSousa herself.

[138] While this offence does strike against the administration of justice, it falls at the low end of objective gravity when compared to similar cases involving obstruction of justice within the context of a homicide. Ms. Leblanc deceived hospital and police officials. The lie was soon discovered, although I accept that a lie that undermines the administration of justice or a police investigation is always serious. However, the actual mischief to the administration of justice was limited in the circumstances of this case. More fundamentally however, the personal circumstances of the offender in this case, due to the systematic beating down she endured at the hands of Mr. DeSousa, reduce her moral blameworthiness a significant degree. It would have been very difficult for Ms. Leblanc, in the state she was in, to be able to speak up and tell the truth about what had transpired. In my view, the imposition of a criminal record would result in a sentence which would not be proportional when I consider both the circumstances of the offence and the unique circumstances of this offender. Sentencing is “one of the most delicate stages of the criminal justice process in Canada.”: Lacasse, at para. 1.

[139] I believe that thoughtful, tolerant and well-informed Canadians would support the sentence which I have imposed in this most unique and unusual case. For these reasons I found that a conditional discharge would be not contrary to the public interest. I sentence Ms. Leblanc to a conditional discharge with a period of probation for 12 months. The only condition I impose is that she is to continue her therapy with her private psychologist, Dr. Bourgon. I declined to impose a DNA order in this case. Given the 15 months in prison which Ms. Leblanc served, I declined to impose the community service hours which the Crown requested.

Anne London-Weinstein J.

Released: February 28, 2022

COURT FILE NO.: 18-M7908 DATE: 2022/02/28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty The Queen – and – Danielle Leblanc Accused Reasons for sentence Anne London-Weinstein J. Released: February 28, 2022