COURT OF APPEAL FOR ONTARIO
DATE: 20000818
DOCKETS: C31490 and C31558
FINLAYSON, GOUDGE and FELDMAN JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN ) Gregory J. Tweney, for the
) respondent
(Respondent) )
–and– )
NADIA HABIB ) James D. Vlasis, for the
) appellant
(Appellant) )
) Heard: August 11, 2000
On appeal from the conviction imposed by The Honourable Madam Justice Janet M. Wilson, sitting with a jury, dated December 1, 1998 and from the sentence imposed by Justice Wilson dated January 20, 1999.
BY THE COURT:
The conviction appeal
[1] The appellant was convicted of aggravated assault by a jury. She was sentence by the trial judge to two years less a day, to be served conditionally, and three years probation.
[2] The facts in overview are that the 18-month-old Lauren Jeffs was rushed to Scarborough Centenary Hospital. She had a brain injury, a skull fracture and serious injuries to her eyes. The undisputed cause of these injuries was Shaken Baby Syndrome. The only issues at trial related to when the shaking took place and who perpetrated the shaking.
[3] The Crown's theory was that the appellant, who was the babysitter of the child, was the one responsible for Lauren’s injuries. Lauren was a healthy 18-month-old child with a normal medical history. The need for her immediate hospitalization came at a time when Lauren was in the sole care of the appellant. According to the Crown, the medical evidence proved that Lauren was violently shaken shortly before 1:00 p.m. on the day that she was admitted to the hospital.
[4] The theory of the defence was that Lauren was shaken by someone else, sometime prior to that date. According to the defence, the injuries which required Lauren's hospitalization were precipitated by an accidental fall from a coffee table at the appellant's home. According to the defence, the appellant was not only a person of good character, but physically incapable of shaking Lauren in the violent manner necessary to cause Shaken Baby Syndrome.
[5] The grounds for appeal all relate to procedural matters upon which the trial judge made rulings. These rulings were fully within the discretion exercisable by a trial judge and we are not persuaded that she erred with respect to any of them. We will deal with them for the record.
The jury requested transcripts of the evidence of two of the medical experts by name – one called by the Crown and the other by the defence. The testimony of the experts related to an important but discreet issue with respect to the cause of death. The evidence of the experts had been reduced to transcript form and the trial judge instructed that copies be made and distributed to the members of the jury. Objection is made in this court for the first time because the trial judge did not volunteer the evidence of a third expert whose testimony respecting eye injuries was not responsive to the jury’s request. In our view, defence counsel has an obligation to co-operate with the trial judge in responding to requests made by the jury and if defence counsel thought that the evidence of the third witness was of importance, he should have raised the matter with the trial judge. It is much too late to deal with the request now.
There was a second request for transcripts of the evidence of the appellant and of the victim’s mother. This evidence had not been reduced to transcript form and the trial judge so advised the members of the jury. She asked if they could be more specific so that she could have the court reporter read back portions of the evidence that related to their concerns. The jury did respond by being more specific and, with the co-operation of all counsel, the shorthand reporter did read back the relevant portions of the evidence. There is no objection to be taken to this treatment of the jury’s request.
At the opening of trial, the trial judge had made an order in the usual form excluding all witnesses. At the time the order was made, neither party contemplated that the father of the child, Mark Jeffs, would be called as a witness. Later, during the course of the trial, the Crown determined that it did wish to call him to give evidence on two discreet matters that had arisen during the course of the evidence. The Crown asked for and received permission to call Mr. Jeffs. In this court, it is said that the caution that the trial judge gave to the jury with respect to accepting Mark Jeff’s evidence was insufficient. They should have been advised that they could give it no weight whatsoever. However, Mr. Jeff’s conduct was blameless. He was not in contempt of any order of the court. Once he was permitted to testify, it was not necessary for the trial judge to do any more than what she did, namely to remind the jury that in assessing the weight to be given to his evidence, they should remember that he did have the opportunity of hearing the evidence of the witnesses who had preceded him.
The appellant complains that the trial judge forced his counsel to disclose his expert witness’ report to the Crown. There is no merit to this objection. It appears from the record that defence counsel had undertaken at a pre-trial hearing before another judge to produce this report and he did so prior to the trial. There was no order made by the trial judge requiring him to do so and he had simply responded to his own undertaking. We have no concern about this matter at all.
The next matter relates to jury note taking. The jury asked to take notes during the read-back of the evidence of the appellant and the victim’s mother regarding Lauren’s condition two weeks prior to the incident on the offence date. No objection was taken by counsel to the jury taking notes nor was the trial judge requested to give the jury any limiting instruction. Nevertheless, in permitting the jury to take notes during the read-back of the evidence, the trial judge provided the following caution:
I understand you’ve asked to take notes, is that correct. I simply advise you it’s not the best note-taker, it’s, again, your recollection of the evidence that is important and not to get mezmerized by anybody’s notes but with that caution we’ll provide whoever wants to take notes with a pad and pencil.
In the light of this caution to the jury no exception can be taken to the manner in which the trial judge handled the matter.
- The last objection relates to the cross-examination by the Crown of the appellant regarding the presence of one of her children in court. We are at a loss to know why the Crown would wish to engage in this cross-examination but it is quite clear that the effect of it could only have redounded to the benefit of the appellant. The Crown was permitted to cross-examine the appellant about the presence of her youngest child in the courtroom during the course of the trial. The appellant explained that since all of her friends and relatives had come to court to support her, there was no one to look after her daughter. Besides, she said, her daughter wanted to be with her. In overruling defence counsel’s objection to this line of questioning, the trial judge held that the questions were relevant to the appellant’s child rearing practices and her expectations of young children. She noted that the probative value of the evidence outweighed its prejudicial effect since it would have been obvious to the jury that the appellant’s children were in the courtroom. We would not give effect to this objection.
[6] Accordingly, for the reasons given, the appeal against conviction is dismissed.
The sentence appeal
[7] Following conviction and submissions as to sentence, the trial judge delivered lengthy and careful reasons sentencing the appellant to two years less a day to be served by way of conditional sentence followed by a three-year term of probation. Both the Crown and the appellant seek to appeal, with leave, from this disposition.
[8] The Crown argues that the length of sentence imposed was outside the appropriate range for this offence and that, in imposing a conditional sentence, the trial judge erred in principle in giving insufficient weight to the considerations of general deterrence and denunciation.
[9] The Crown submits that, while the appropriate sentence at trial should have been a two to three year penitentiary term, given that the appellant has served 19 months of her conditional sentence, this court ought to impose a sentence in the mid to upper reformatory range. We disagree.
[10] The Crown submits that the appropriate sentence for an aggravated assault conviction involving Shaken Baby Syndrome is three to five years. While the typical case may receive such a sentence, the range must extend to accommodate the rare or exceptional case, such as this. The trial judge had before her relevant jurisprudence revealing a range that covered, in her words, “a broad landscape”. Referencing cases such as R. v. Cooper (1985), 9 O.A.C. 389 (Ont. C.A.), she concluded that a sentence of two years less a day was not so low as to be outside the range for this offence. We agree. The trial judge did not err by imposing a sentence of this length.
[11] Nor did the trial judge err in principle in the particular circumstances of this case when she ordered that this sentence be served in the community. The Crown does not assert that such a sentence would endanger the safety of the community or that it inadequately serves the requirement of specific deterrence of this appellant. Rather, the Crown rests on what counsel says is the inadequate weight such a sentence gives to the factors of denunciation and general deterrence given that this was a Shaken Baby Syndrome case.
[12] Again, we do not agree. Just as we cannot exclude the conditional sentencing possibility from categories of offence, we cannot do so for subcategories such as all Shaken Baby Syndrome cases. While there is no doubt that the assault of an infant will always be a very serious matter, the appropriate sentence must depend on the particular facts in each case. The trial judge was alive to the need to take that approach in this case. In particular, her carefully crafted reasons lay out the special mitigating circumstances that exist in this case. The appellant is a first-time offender. She received exemplary reports with respect to her child care. The pre-sentence report was described by the trial judge as “glowing”. The appellant acted responsibly when it first appeared that the child needed medical attention and throughout she has had extraordinarily strong family support. The Crown, with its usual fairness, has provided current information to indicate that the child has thankfully recovered very well from her injuries.
[13] In all the circumstances of this particular case, we simply cannot say that the trial judge erred in principle by imposing a conditional sentence. Hence, we are unable to give effect to either argument raised by the Crown.
[14] The appellant’s quarrel with the sentence is that the length of the term of probation is too long and the term preventing the appellant from being alone with a child under four is too harsh. However, the appellant points to no error in principle by the trial judge in imposing these aspects of the sentence and we can see none. Given the deference to be accorded to the determination of the sentencing judge, we would not interfere with the length of probation imposed nor with any of its terms.
[15] Leave is granted to the Crown and the appellant to appeal sentence but the appeals of each are dismissed.
Released: 20000818 Signed: “G.D. Finlayson J.A.”
GDF “S.T. Goudge J.A.”
“K. Feldman J.A.”