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) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the victim, has been imposed. Subsections 486(4.1) and 486(5) of the Criminal Code provide:
S. 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 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system participant who is involved in the proceedings – or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.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.
DATE: 20050513
DOCKET: C42012
COURT OF APPEAL FOR ONTARIO
GOUDGE, FELDMAN and JURIANSZ JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Aaron Harnett
for the appellant
Respondent
- and -
Shawn Porter
for the respondent
H.-G. (F.)
Appellant
Heard: March 11, 2005
On appeal from sentence imposed by Justice P. Tetley of the Ontario Court of Justice dated May 28, 2004.
FELDMAN J.A.:
[1] The appellant pled guilty to assault causing bodily harm and assault with a weapon on her nine-year old daughter. On May 24, 2004, the appellant was sentenced to nine months in prison, together with three years probation. She served 49 days in custody before being released on bail pending appeal. She appeals the custodial portion of her sentence.
[2] The circumstances of this case are horrific and extremely sad. The child was demonstrating some behaviour problems at school, which the mother was not able to control or resolve. After receiving a call from the school on March 17, 2003, the mother decided to employ a form of discipline which involved burning the child using a heated spoon, in order to make a permanent mark that would be a reminder to the child of the consequences of misbehaviour. The mother used an ice cream scoop, which she twice reheated on the stove, to make between ten and fourteen burns on the child’s hands, arms and legs, all while she was restraining the child. The mother covered up her actions by lying to the doctor who examined the child and by telling the child to lie to school authorities by saying the burns were accidental. Eventually the child told her school vice-principal the truth and the authorities were called.
[3] Witnesses of Iranian heritage, called at the sentencing hearing, confirmed that in past generations this type of punishment was “not unknown.” However, none of them had any first-hand knowledge of anything more than a threat to use the spoon on a child, rather than any actual burning, as a method of discipline.
[4] Following the appellant’s arrest, the child was removed from the home by the Children’s Aid Society and eventually returned to the care of the father. Pending trial and appeal, the appellant was on release in the community on very restrictive bail conditions for over eighteen months, but lived separately from the family. While on release, the appellant initiated several rehabilitative actions and programs. She attends weekly individual counselling with a social worker through the Family Association of Toronto to address effective parenting skills and to deal with her frustration with the child’s difficulties. She receives other weekly counselling through the Family Life Center, focusing on parenting skills. She worked with a child settlement worker to assist the family to prepare for their eventual reunification. She also sought and received psychiatric help. The reports from each of these counsellors were positive, and most said the appellant was remorseful and wanted to become a better parent and to be reunited with her family.
[5] The trial judge heard from a number of witnesses including all but one of the appellant’s counsellors and liaison workers, the probation officer who prepared the pre-sentence report and the investigating officer. These witnesses had had extensive contact with the appellant and provided the court with insight into the appellant, the offence and the appellant’s ongoing attempts to rehabilitate herself.
[6] At trial, the defence sought a conditional sentence of eighteen months on strict conditions, together with three years probation, while the Crown asked the judge to impose a custodial sentence of eighteen months. The defence relied on eleven mitigating factors in support of its position that a conditional sentence would serve the interests of justice and all of the necessary sentencing objectives, including deterrence and denunciation. Those factors were: the guilty plea, which saved the child from the ordeal of testifying; the positive rehabilitative efforts, including all the counselling and co-operation with Children’s Aid; the appellant’s remorse; the fact that this was a one-time behavioural aberration by the appellant; the low risk to the safety of the public or to re-offend; the absence of any record; the appellant's employment in the family business as a contributing member of society; the positive prognosis from the counselling reports; the involvement of the Children’s Aid Society to address any security concerns for the children; the desirability of maintaining continuity in the counselling regime; and, the appellant’s compliance with her strict bail conditions for over a year.
[7] In taking the position that a custodial sentence was required, the Crown emphasized the need for deterrence and denunciation as the primary sentencing objectives. The Crown referred to the violence and the permanent scarring it caused, the breach of trust, the appellant’s initial denial and cover-up and subsequent minimization of the offence and her blame of others. Counsel challenged the sincerity of the appellant’s remorse on the basis that she had misled her counsellors about the family’s economic circumstances. He also referred to the negative aspects of the pre-sentence report in terms of the appellant’s difficulties at the beginning of the counselling process in accepting responsibility for her situation. Finally, the Crown submitted that a significant denunciatory sentence was required because of the barbaric nature of the appellant’s conduct that undermined the fundamental values of our society.
[8] The trial judge declined to impose a conditional sentence in this case. He was satisfied that the appellant met the first three conditions for a conditional sentence, namely: the offences were not punishable by a minimum term of imprisonment, a penitentiary sentence was not warranted and the appellant did not pose a danger to the community. However, the trial judge believed that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in ss. 718‑718.2 of the Criminal Code, particularly the need for denunciation and deterrence. He expressed the view that while the appellant would likely be completely rehabilitated if she continued with all of her counselling, and would be able to put the incident behind her, the child might remain both physically and emotionally scarred for life. He therefore imposed the sentence of nine months in prison plus three years probation on strict terms including continued counselling and strict Children’s Aid Society control over the appellant’s access to the child.
[9] The appellant’s position on the appeal is that the trial judge erred in declining to impose a conditional sentence. He over-emphasized general deterrence and denunciation and failed to give sufficient weight to the need for rehabilitation. In this case the rehabilitation factor was particularly important because the appellant would be returning to the home as the mother of the victim and her younger brother. This was not a situation where the children were to be removed permanently from the home and from their parents’ care.
[10] The appellant provided fresh evidence on the appeal in the form of a report filed in child protection proceedings, documenting the Children’s Aid Society’s investigation and evaluation of the progress of the children and of the mother since her release on bail pending appeal in July 2004. The children had been apprehended following the appellant’s arrest and put into foster care. On August 17, 2004, the children were placed back into the custody of their father with supervised access to the mother, although she did not yet live back with the family. Based on the progress of the family, the mother was allowed to return to live with them beginning in November 2004. In February 2005 the Society commenced a status review application where it sought a further order placing the children with both parents, subject to Society supervision and monitoring for a further six months. The order also required the mother and the family to continue with prescribed counselling.
[11] The court was advised that based on the continued effectiveness of this order, the Society supported the appellant in her sentence appeal. The appellant and her family have made significant progress in the process of re-establishing the trust relationship and in reintegrating the family as a functioning unit. To remove the mother again and put her into custody to serve the balance of her sentence would be disruptive to the success already achieved, and would not be in the best interests of the children, including the daughter.
[12] Although the trial judge could well have viewed the situation as one that allowed for the imposition of a conditional sentence, he did not err in deciding not to impose one. He considered all of the proper factors and was alive to the issues for this family as they presented themselves at the date of sentencing, when the children were still in foster care. In light of the horrendous nature of the act perpetrated by the mother as discipline, and the gross breach of trust that was involved, the trial judge properly viewed general deterrence and denunciation as very significant factors, and he was entitled to conclude that the circumstances required a period of incarceration in order to achieve all of the important sentencing objectives.
[13] However, at this point in time, the situation has changed. This court has been provided with fresh evidence of what has transpired for this family since May 2004, and particularly for this mother and child, and the very significant progress that has been made toward complete recovery of the family unit and relationship. This is not a situation where an adult is sentenced in respect of an offence committed against a child where there will be no future contact or relationship between the two. Here we have a family that has been reunited, following much sincere and determined effort by all family members and by the Children’s Aid Society. The Society supports a conditional sentence for the mother at this point, so that she will remain at home with her children and continue to repair and solidify their relationship.
[14] In my view, in the current circumstances, it is appropriate for this court to set aside the sentence of incarceration imposed by the trial judge and to substitute a conditional sentence of nine months incarceration to be served in the community on strict terms. It is well established that a conditional sentence is a denunciatory sentence. The strict conditions severely limit the freedom of the convicted person. In my view, the emotional scars of this terrible event in the life of the appellant will remain with her for her entire life.
[15] The three-year probation period will remain in place. Counsel are requested to discuss and, if possible, to agree on proposed terms of the conditional sentence and any modifications to the probation terms in light of the current circumstances, and to advise the court. If counsel cannot agree, the court may be spoken to.
Conclusion
[16] In the result, leave to appeal the sentence is granted, the sentence imposed by the trial judge is set aside and considering the time already served, in its place this court imposes a conditional sentence of nine months incarceration, beginning from release of these reasons, to be served in the community, on strict conditions to be determined in accordance with these reasons. The three-year period of probation imposed by the trial judge is to remain on the same terms, subject to any modification in accordance with these reasons.
[17] In the circumstances of this case, it is necessary for the proper administration of justice that the identity of the daughter be protected. With the concurrence of the parties, there will be an order under s. 486(4.1) of the Criminal Code directing that the identity of the daughter not be published or broadcast.
Signed: “K. Feldman J.A.”
“I agree S.T. Goudge J.A.”
“I agree R.G. Juriansz J.A.”
RELEASED: “SG” May 13, 2005