W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(4.1) and 517 of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(4.1), 486(5) and 517 of the Criminal Code provide:

486. (4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness – or, in the case of an offence referred to in subsection (4.11), the identity of a justice system participant who is involved in the proceedings – or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

517. (1) Where the prosecutor or the accused intends to show cause under section 515, he shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any newspaper or broadcast before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

(3) In this section"newspaper" has the same meaning as in section 297. R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st Supp.), s. 101(E).

DATE: 20041104

DOCKET: C42121

COURT OF APPEAL FOR ONTARIO

LABROSSE, MacPHERSON and CRONK JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Ian D. Scott and

Tina Yuen

Appellant

for the appellant

• and -

W.R. and CE.R.

Dennis K. Lenzin

for the respondent W.R.

Respondents

Christopher D. Hicks and

Catriona Verner

for the respondent Ce.R.

Heard: October 15, 2004

On application for leave to appeal sentence and, if leave be granted, on appeal from the sentences imposed by Justice Donald J. Halikowski of the Ontario Court of Justice on July 5, 2004.

CRONK J.A.:

[1] In early July 2001, multiple charges were brought against the respondents arising from their physical, psychological and emotional abuse and confinement of their two adopted sons, C.R. and B.R., during the period January 1, 1988 to June 29, 2001.

[2] After eight days of a preliminary inquiry that commenced in January 2003 before Halikowski J. of the Ontario Court of Justice, the respondents entered pleas of guilty to two counts each of forcible confinement, assault with a weapon and failing to provide the necessaries of life. Thereafter, Halikowski J. conducted the ‘trial of an issue’ to determine those facts that supported the respondents’ guilty pleas. The respondents did not testify at any point during this process. On February 9, 2004, based on his factual findings and the pleas entered by the respondents, the trial judge convicted the respondents on all counts to which they had pled guilty.

[3] On July 5, 2004, the trial judge sentenced each of the respondents to a global sentence of nine months incarceration, to be served concurrently on all charges, followed by three years probation. The Crown seeks leave to appeal sentence and, if leave be granted, appeals against the respondents’ sentences.

[4] Of the various grounds of appeal raised by the Crown in support of its sentence appeal, I am satisfied that the trial judge erred in principle by failing to take into account the respondents’ position of trust and the aggravating nature of their numerous breaches of trust in relation to C.R. and B.R. In addition, based on the trial judge’s findings concerning the respondents’ criminal conduct, its extent and duration, the context and circumstances in which it occurred, and its impact on C.R. and B.R., I conclude that the sentences imposed by the trial judge are not proportionate to the gravity of the respondents’ offences and are demonstrably unfit. In my view, the respondents’ crimes cry out for a significant penitentiary sentence. Accordingly, for the reasons that follow, I would grant leave to appeal sentence and allow the Crown’s sentence appeal.

I. Background

[5] C.R. and B.R. were born in the mid-1980’s to a woman who misused both alcohol and drugs. When their mother became unable or unwilling to parent them, she entreated her sister, W.R., to raise the boys. Although initially reluctant to do so, W.R. ultimately acceded to her sister’s requests and, by January 1988, she and her husband, Ce.R., had assumed primary responsibility for both boys’ care. C.R. was then about three and B.R. was about two years of age. The boys’ mother died approximately five years later from causes thought to be related to substance abuse.

[6] The trial judge found that C.R. and B.R. both suffer from fetal alcohol syndrome (“FAS”), a condition that triggers hyperactivity, acting-out behaviours and discipline problems. Although the basis for this finding is attacked by the Crown in this proceeding, there is no dispute that the boys were difficult to manage from the time that they came to live with the respondents.

[7] Almost from the outset of their residence with the respondents, C.R. and B.R. became the victims of a horrific and prolonged cycle of abuse, confinement and degradation inflicted by the respondents and certain of their relatives. This abuse, which extended over a period of thirteen and one-half years, was succinctly described by the trial judge in blunt and heart-wrenching words in his February 9, 2004 reasons for judgment:

All witnesses described [C.R.] and [B.R.] being tethered, made to sleep in a dog cage in the case of [C.R.], made to sleep within a specially constructed room and, in the latter stages, made to sleep in cages constructed out of cribs that had locks. [C.R.] received a greater proportion of this type of treatment. All witnesses speak of the physical striking of the boys by Ce. [R.] with a slipper and by W. [R.] with a shoe horn. The accused must be found to have been party to the assaults on [C.R.] and [B.R.] by [their son-in-law] since they were conducted at times pursuant to W. [R.’s] requests and with the knowledge of Ce. [R.].

All witnesses speak of the effects of this physical punishment when it was used to train the young boys not to defecate in their diapers at night. Both [C.R.] and [B.R.] confirm[ed] after gentle but persistent questioning by the police that they did eat their own feces and drink their own urine to hide these accidents out of fear of what would occur if they were discovered. All witnesses confirm the shouting of profanities and demeaning comments by W. [R.] at various points in the process when she discovered bad behaviour that she deemed had to be corrected.

The complex requirements of [C.R.] and [B.R.] exceeded the capabilities of W. and Ce. [R.]. The tendency of the boys to wander and be distracted at night was initially remedied by tethering them to each other and to their beds. This later escalated into a complete denial of their liberties by their being locked into rooms and cages. The accused believed that they could improve the boys’ inability to take direction during the day by means of corporal punishment and verbal abuse. They believed that they could correct their bowel and urinary problems at night by the use of diapers, coupled with corporal punishment and the denial of mattresses, blankets and pillows. What may have started off as a well-intentioned series of acts to prevent the boys from harming themselves or to train them, over time descended darkly into abusive behaviour that sometimes crossed the threshold into near torture. Throughout the process, Ce. [R.] acted passively, allowing this treatment to continue. …

As time passed, the thin veneer of civility and compassion that had tenuously existed within this troubled family was slowly stripped away and the maltreatment of two innocent young boys became a way of life within the extended [R.] family.

[8] Subsequently, in his reasons for sentence, the trial judge held that the respondents knew that their treatment of C.R. and B.R. was wrong, that the regimen of discipline and treatment utilized by the respondents “took on barbarous characteristics”, that the respondents had devised “a virtual prison” for the boys “made from lockable cribs without mattresses and bedding”, that both respondents had failed to ensure that C.R. and B.R.’s best interests were met and that, by failing to seek the assistance of the local Children’s Aid Society, which they knew was available and required, the respondents “almost guaranteed the slow progression into near torture that these young men would experience”.

[9] C.R. and B.R. were apprehended by the Children’s Aid Society on June 29, 2001 and removed from the respondents’ home. C.R. was then fifteen years of age. B.R. was fourteen.

[10] The trial judge found that, within days of their apprehension, C.R. and B.R. regressed to almost an “infantile state” and that, thereafter, aggressive and lengthy professional intervention was necessary to counteract the deterioration in their conditions. He held that the respondents could not be held “completely responsible for the after effects of the apprehension” on C.R. and B.R., or for the boys’ pre-existing conditions when they came into the respondents’ care. The trial judge stated: “The accused are responsible and will be accountable for the actual methods they used to control, educate and discipline these young men while they were in their care.”

II. Issues

[11] The Crown raises several grounds of appeal in support of its challenge of the sentences imposed by the trial judge. It is necessary to consider only two of these for the disposition of this appeal, namely: (i) whether the trial judge erred in principle by failing to consider the respondents’ breaches of trust in respect of C.R. and B.R. as an aggravating factor in the sentencing process; and (ii) whether the sentences imposed offend the principle of proportionality and are demonstrably unfit.

III. Discussion

(1) Breaches of Trust

[12] The trial judge’s reasons for sentence reflect a thoughtful and thorough consideration of many factors engaged at the sentencing hearing. However, his reasons contain no indication that he considered the respondents’ position of trust and the sentencing implications of their breaches of trust in relation to C.R. and B.R. This was an error in principle.

[13] The respondents do not contest that, as the parents of the two young boys, they stood in a position of trust to C.R. and B.R.; nor do they attack in this proceeding the trial judge’s findings concerning the nature, extent and duration of their treatment and care of C.R. and B.R. These findings, which I have previously described, establish that the respondents’ breaches of trust in respect of C.R. and B.R. were clear, sustained and deliberate.

[14] Strict maintenance of the trust relationship between parents and children, particularly children whose vulnerability and needs are heightened by young age, developmental difficulties or conditions such as FAS, or other similar factors, is an integral component of responsible and civilized community life in Canada. Few, if any, other relationships in society will attract more rigorous scrutiny by the courts in their application of the law in order to protect against the abuse and exploitation of vulnerable persons by those to whom their care and protection have been entrusted.

[15] Parliament has recognized the fundamental importance of such trust relationships in the sentencing process by providing in s. 718.2(a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 that the abuse of a position of trust or authority by an accused in relation to a victim is an aggravating factor that must be taken into account by a sentencing judge.

[16] As 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: R. v. Naglik (1991), 65 C.C.C. (3d) 272 (Ont. C.A.), reversed on other grounds, 1993 64 (SCC), [1993] 3 S.C.R. 122. See also R. v. Cudmore (1972), 5 C.C.C. (2d) 536 (Ont. C.A.), R. v. Cooper (1985), 9 O.A.C. 389 (C.A.) and R. v. Sundh (1989), 32 O.A.C. 319 (C.A.).

[17] The respondents’ position of trust was the defining feature of their relationship with C.R. and B.R. It imposed fundamental obligations on the respondents in respect of their care and treatment of their sons, obliging them to protect and nurture C.R. and B.R. The findings of the trial judge leave no doubt that these obligations were repeatedly and grievously breached by the respondents. In my view, this trust relationship and the respondents’ breaches of trust should have featured prominently in the trial judge’s sentencing analysis.

[18] Based on his failure to address the trust relationship between the respondents and C.R. and B.R., and the respondents’ prolonged and multiple breaches of trust, this court cannot be certain that the trial judge considered and applied the mandatory requirement of s. 718.2(a)(iii) of the Criminal Code in this case.

(2) Principle of Proportionality

[19] Section 718.1 of the Code provides that: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The Crown argues that the trial judge erred in failing to consider and apply this fundamental sentencing principle, that the respondents’ sentences of nine months incarceration “utterly fail to reflect this principle” and that, accordingly, the sentences imposed are manifestly unfit.

[20] In contrast, defence counsel assert that the trial judge was alive to every legal issue in this case, that he properly recognized the full context in which the abuse of C.R. and B.R. occurred (including the challenges presented by the boys and faced by their caregivers), that the sentences imposed were within the discretion of the trial judge, and that they attract deference on appellate review.

[21] In my opinion, the Crown’s argument must prevail, for several reasons. First, the policy direction embodied in s. 718.1 underlies all the sentencing principles enunciated by Parliament in the Criminal Code. It reflects society’s commitment, through the criminal law, to ensure that offenders are sentenced in accordance with the seriousness of their criminal conduct and the degree of their responsibility. Although the trial judge stated in his reasons for sentence that: “Blameworthiness is an important consideration in the sentencing of these two particular accused”, the sentences imposed, in my view, are not proportionate to the respondents’ crimes and the degree of their culpability.

[22] Second, in his sentencing reasons, the trial judge considered the prevailing circumstances of the respondents and C.R. and B.R. when the latter began to live with W.R. and Ce.R. He also addressed the respondents’ motives for their treatment of the boys, the steps taken by W.R. to measure the boys’ development and progress and his view of the aftermath of the June 2001 apprehension of the boys by the Children’s Aid Society. I accept that, on the evidence before the trial judge, these were proper sentencing considerations. Importantly, however, the trial judge’s sentencing reasons contain no analysis of the gravity of the respondents’ proven criminal conduct and their degree of culpability. Simply put, there was a ‘disconnect’ in this case between the gravity of the respondents’ conduct, the degree of their responsibility for their crimes and the sentences imposed. This is reversible error, which displaces the requirement for deference to the sentences imposed by the trial judge.

(3) Fit Sentences

[23] In view of these errors by the trial judge, this court is obliged to determine fit sentences for the respondents.

[24] All counsel agree that the facts of this case are unique and that, as a result, it is difficult to identify directly analogous sentencing cases. It is also not possible to refer to a ‘range of sentence’ for the offences at issue here.

[25] The trial judge held that certain of the abusive conduct alleged by the Crown against the respondents was not established on the evidence. The defence maintains that, in fact, the “worst” elements of the abuse alleged by the Crown were not made out and that, on the conduct accepted by the trial judge, the sentences imposed are fit. I disagree.

[26] The facts as found by the trial judge unequivocally establish the horrendous abuse of two young boys by their parents for more than a decade. The abuse was carried out by the respondents in breach of their position of trust in relation to the boys and with full knowledge that their conduct was wrongful and that assistance was available from community agencies on request. Nonetheless, the respondents knowingly persisted in a continuing and escalating course of abusive conduct and failed to seek available assistance for the care and management of C.R. and B.R. The respondents’ conduct is shocking to the conscience of the community.

[27] The trial judge characterized the ‘disciplinary’ measures employed by the respondents as “barbarous” and tantamount to “near torture”. On the facts as found by him, the abuse of C.R. and B.R. was of an extensive duration – corresponding to almost the entire lives of the victims. It involved domination and control of the boys, instilled through fear and the threat of increased punishment if the boys persisted in their unwanted behaviours. It included physical beatings by W.R. with a shoehorn and by Ce.R. with a slipper, the tethering of the boys, their imprisonment in specially constructed locked containment cages, verbal abuse by W.R. and the “complete denial of [the] liberties” of C.R. and B.R. The respondents engaged in a course of unrelenting degradation and humiliation of C.R. and B.R., often accompanied by a profound lack of regard for their physical, psychological and emotional needs. This ceased only when C.R. and B.R. were removed by the authorities from the respondents’ home. These facts alone illuminate the gravity of the respondents’ conduct and compel severe sentences.

[28] The trial judge’s finding that both respondents knew that their conduct was inappropriate heightens the degree of their moral blameworthiness and the seriousness of their actions. This is not a case where the accused lacked understanding of accepted societal behaviour and lawful parenting activities, or of the means available to obtain assistance. W.R., in particular, was in regular contact with C.R. and B.R.’s family physician and teachers to seek advice and discuss the boys’ progress. She made a conscious decision not to turn to the Children’s Aid Society for help. The trial judge held that both respondents “knew what they were doing was wrong and made the conscious decision to carry on with their treatment of these children, refusing to give them into the care of the Children’s Aid Society, a place where they must have known they would have received better treatment than they were getting at home”.

[29] Counsel for Ce.R. argues that this court should differentiate in sentencing between W.R. and Ce.R. because W.R. was the dominant force in orchestrating, inflicting and overseeing the abuse of C.R. and B.R. Crown counsel acknowledged before this court that Ce.R.’s treatment of the boys was “more lenient” than that of Wendy R. At trial, the Crown sought penitentiary sentences for W.R. in the range of six to eight years and for Ce.R. in the range of three to five years. On occasion, Ce.R. actively engaged in the abuse of C.R. and B.R. Moreover, despite his duty to protect C.R. and B.R., he passively acquiesced in W.R.’s abuse of them. Accordingly, in my view, to the extent that Ce.R.’s conduct deserves any distinction from that of W.R., it is a minor one.

[30] The sentences imposed here must clearly signal society’s abhorrence and condemnation of the prolonged child abuse inflicted by the respondents. Stated simply, the appalling abusive conduct of the respondents cannot be tolerated and must be met with severe sanction. Denunciation and deterrence are paramount sentencing considerations.

[31] As I have previously indicated, at trial the Crown sought sentences of six to eight years for W.R. and three to five years for Ce.R. There is certainly merit in these proposed sentences. However, there are several important factors, to which the trial judge was attuned, that require mitigation consideration.

[32] Both respondents have health problems and disabilities. W.R. has no criminal record and Ce.R.’s record is minor, dated and unrelated to these types of offences. The trial judge held that the respondents’ abusive conduct was not sadistic in nature and that the respondents do not pose a threat to the community at large. As well, through the years, one or both of the respondents regularly consulted the boys’ school and the family doctor about C.R. and B.R.’s education and medical conditions. Thus, although the respondents’ conduct in relation to C.R. and B.R. was truly reprehensible, their situation is not wholly devoid of tragic circumstance.

[33] In all the circumstances, in my view, fit sentences for W.R. and Ce.R. are global sentences of five and four years imprisonment on all counts, respectively, to be served concurrently. But for the mitigating factors that I have outlined, these sentences may well have been higher.

[34] I conclude with one further observation. The trial judge’s reasons for sentence indicate his preoccupation with the negative impact on C.R. and B.R. of their apprehension by the Children’s Aid Society. To the extent that his reasons can be read as criticizing the authorities for the manner in which the apprehension was carried out, or as suggesting that the apprehension itself caused the extensive trauma sustained by C.R. and B.R., it is my view that such observations are misplaced. There was considerable expert evidence adduced before the trial judge supporting the conclusion that, upon release from the “prison” erected by W.R. and Ce.R., C.R. and B.R. experienced a period of decompensation on the road to recovery. This is not unexpected; nor does it diminish the culpability of the respondents for their abuse of their victims.

IV. Disposition

[35] Accordingly, for the reasons given, I would grant leave to appeal sentence and allow the sentence appeal by setting aside the sentences of nine months in the reformatory and substituting global penitentiary sentences of five years imprisonment for W.R. and four years imprisonment for Cecil R. on all counts, to be served concurrently.

RELEASED:

“JCM” “E.A. Cronk J.A.”

“NOV –4 2004” “I agree J.M. Labrosse J.A.”

“I agree J.C. MacPherson J.A.”