COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Alexander, 2014 ONCA 22

DATE: 20140113

DOCKET: C55445

Goudge, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Melissa Alexander

Appellant

Jill R. Presser and Lucy Saunders, for the appellant

Christine Tier, for the respondent

Heard: October 30, 2013

On appeal from the sentence imposed on December 7, 2011 by Justice Anne Molloy of the Superior Court of Justice, with reasons reported at 2011 ONSC 6839.

Cronk J.A.:

I. Introduction

[1] The appellant was convicted of manslaughter by failing to provide the necessaries of life to her 19-month old son, Miguel Fernandes, who died in mid-September, 2007. A companion charge of manslaughter by criminal negligence was withdrawn shortly before trial. The appellant was sentenced to 10 years and two months’ imprisonment, after nine months’ credit for pre-sentence custody. She appeals from her sentence.

[2] The appellant advances four main grounds of appeal. She submits that the sentencing judge erred: (1) in various respects, in her consideration of the aggravating and mitigating factors relevant to sentencing; (2) by taking account of a victim impact statement that contained impermissible elements; (3) by imposing a sentence that is outside the applicable range for similar offences and similar offenders; and (4) in calculating the amount of credit to be afforded to the appellant for pre-sentence custody.

[3] As I will explain, the Crown concedes on this appeal hearing that the calculation of credit for pre-sentence custody in this case was inaccurate and that the appellant is entitled to eight months’ additional credit. In light of this concession, I would allow the appeal in respect of this narrow issue.

[4] However, for the reasons that follow, I would reject all other grounds of appeal advanced by the appellant. I see no error in principle in the sentencing judge’s consideration of the aggravating and mitigating factors applicable in this case or in her treatment of the challenged victim impact statement. Nor, in my view, is the sentence imposed unfit or outside the appropriate range for this offender and this offence. Accordingly, save with respect to the amount of credit to be afforded to the appellant for pre-sentence custody, I would dismiss the appeal.

II. Background

[5] The sentencing judge outlined the relevant background facts at length in her sentencing reasons. It is unnecessary to repeat all those facts here. Suffice to say that the circumstances surrounding Miguel’s tragic death are heart-wrenching and horrific. The sentencing judge described the core facts in succinct fashion, at para. 1 of her reasons:

Miguel was 19 months old at the time of his death. On the afternoon of September 11, 2007, he sustained severe scalding burns to 40% of his body. His mother, who had sole charge of him at the time, failed to take him to a doctor or hospital. She eventually called 911 at 2:20 am on September 12, 2007, over 12 hours after his injury. By that time, he was already dead. It was her failure to get medical attention for Miguel that resulted in Ms. Alexander’s conviction for manslaughter [2011 ONSC 980].

[6] The sentencing judge accepted that Miguel’s burns could have been accidental. The appellant’s criminal culpability was grounded in her failure to obtain urgently required medical attention for her son after he sustained the burns, likely as a result of his immersion in hot water. The sentencing judge found that the appellant was present when the burns occurred and that she was fully aware of the nature and extent of Miguel’s injuries. In these circumstances, her failure to obtain medical assistance for her son in a timely fashion was a significant contributing cause of his death.

[7] On sentencing, the Crown sought a 15-year term of imprisonment in the penitentiary. The defence argued that a reformatory sentence, in the range of 18 to 24 months' imprisonment, plus three years’ probation, was appropriate.

[8] For detailed and comprehensive reasons (23 single-spaced pages), the sentencing judge rejected both of these positions. In her reasons, she reviewed: the circumstances of the offence; the circumstances of the offender; the foundational sentencing principle of proportionality; the gravity of the offence; the appellant’s moral blameworthiness; the aggravating factors surrounding the offence; the applicable mitigating factors, including the appellant’s prospects for rehabilitation; and the principles of deterrence, denunciation and parity in sentencing.

[9] After taking account of all these factors, the sentencing judge concluded as follows:

[87] This was a horrific crime with devastating consequences for Miguel and for those who loved him. … The gravity of this offence and the blameworthiness of Melissa Alexander mandate a lengthy penitentiary sentence.

[88] Denunciation and deterrence are the [principal] considerations in sentencing here. The sentence must be sufficient to reflect society’s repugnance for this appalling tragedy. I do not see rehabilitation as a significant factor influencing sentencing. Melissa Alexander shows no remorse. Her sorrow is only for what she personally has lost. She remains focused only on her own suffering and continues to see her crime – the fact that she is responsible for the death of her own child – as an “incident” that “happened” to her. That self-absorption and self-interest is what led to her son’s death. Without any insight into that truth, I see little prospect of rehabilitation. Perhaps, over time, with counselling, Ms. Alexander will come to a realization of the magnitude of her wrongdoing. If so, there is some prospect that she could in the future be trusted with the care of children. I do not see that happening in the near or foreseeable future and I do not see this as a reason for reducing any sentence she might otherwise receive. She can benefit from programs within the correctional system to upgrade her skills so that she can obtain employment outside programs involving children.

[89] In light of these factors, as well as the mitigating and aggravating factors to which I have referred throughout these reasons, I find that the appropriate sentence for this offender and this offence is 11 years imprisonment. Further, in my opinion, this is a fit sentence in light of sentences imposed on other offenders in similar circumstances for similar crimes.

III. Discussion

(1) Sentencing Judge’s Consideration of Aggravating Factors

[10] The appellant argues that the sentencing judge erred in her sentencing analysis by treating the cause of Miguel’s burns as an aggravating factor on sentencing. She submits that because the burns were an accident, the questions of how the burns were caused and whether the appellant caused them were irrelevant considerations. The appellant contends, in effect, that the sentencing judge erred by analogizing the appellant’s conduct to that of offenders who intentionally inflicted harm. In so doing, the appellant says, the sentencing judge overstated the appellant’s moral blameworthiness and imposed an excessive sentence. I disagree.

[11] The sentencing judge held that the appellant caused Miguel’s burns. She found, at paras. 26 and 27, that the appellant was alone at home with her two children when Miguel suffered his injuries, that the lower part of Miguel’s body was immersed in hot water, that there was “virtually no evidence of splashing, which would have been present if the child pulled water onto himself, or had been flailing in a tub of hot water”, and that, in order to deflect blame away from herself, the appellant persistently lied to family members, medical personnel and the police about how Miguel’s injuries had been occasioned. On these facts, the sentencing judge concluded, at para. 27, “I have no doubt whatsoever that it was [the appellant] who caused the burn[s] to her son Miguel.”

[12] However, the sentencing judge went on to indicate that she was unable to determine on the evidentiary record, to the requisite criminal standard, whether Miguel’s burns were inflicted deliberately. Consequently, she stated, at para. 28, that “for the purposes of sentencing I will consider that the burn[s] happened accidentally”.

[13] Thus, the sentencing judge made no finding that Miguel’s burns were caused deliberately or intentionally, a factor that, if proven, would significantly enhance the appellant’s moral blameworthiness. Rather, in light of what she viewed as the insufficient state of the record on this issue, the sentencing judge determined to approach her sentencing task on the assumption that the burns were accidental.

[14] In this context, the sentencing judge accepted, at para. 40, that the appellant did not intend that Miguel should die and that she hoped that he would not die. But, on the sentencing judge’s findings, the appellant’s hopes in this regard had little to do with her son and everything to do with her own self-interests. The sentencing judge held, at para. 34:

I am satisfied beyond a reasonable doubt that [the appellant] deliberately failed to get medical treatment for Miguel in order to protect herself. In doing so, she put her own interests first, at the expense of her child, thereby causing his death.

[15] The sentencing judge elaborated, at para. 41, that the appellant knew that if Miguel died “she would be in even greater trouble. However, she took the risk that he could die, believing this to be her best chance of avoiding the blame”.

[16] The sentencing judge was alert to the appellant’s contention that the cause of Miguel’s burns was irrelevant to the sentencing process. She considered and rejected this contention, stating, at para. 32:

I do not agree with the defence submission that the analysis of Ms. Alexander’s moral blameworthiness only begins after the burn has been sustained and that the cause of the burn is irrelevant. The reason Ms. Alexander failed to provide medical care for Miguel is directly linked to the fact that she was trying to protect herself from blame. That is directly relevant to her degree of moral culpability.

[17] When the sentencing judge’s reasons are considered as a whole, as they must be, it is clear that she was satisfied that the appellant did not intend to burn Miguel or to cause his death. But she also found that the appellant did intend to withhold and, in fact, did deliberately withhold medical assistance for her son in an effort to protect herself from blame and the consequences of her actions. It is the latter conduct that established the appellant’s criminal culpability and anchored the sentencing judge’s evaluation of the moral blameworthiness of the appellant’s crime.

[18] In this connection, the sentencing judge made the following key factual findings:

• the appellant was the only person who saw Miguel’s injuries and was positioned to save him;

• rather than immediately seeking medical assistance, the appellant took active steps to cover up what she had done. To this end, she lied to Miguel’s father about how Miguel’s burns had been caused and about the severity of Miguel’s injuries, thereby persuading Miguel’s father that there was no need to examine Miguel’s burns (at paras. 35, 36, 43, 73 and 75);

• the appellant waited more than 12 hours from the time of Miguel’s burns to call 911. Further, when she did call, she reported that Miguel was dead (at paras. 1, 36 and 73);

• the appellant’s crime was not impulsive or a quick or momentary action. To the contrary, she had “many, many opportunities to get help for Miguel and failed to take any of them” (at para. 36); and

• the appellant’s focus was on protecting herself, not her son. In so doing, “she deliberately and intentionally risked the well-being of her child with tragic consequences” (at para. 41).

[19] In the end, as the Crown argues, the sentencing judge found the appellant to have a high degree of moral blameworthiness, not because she caused Miguel’s burns, but because she purposely – and for a sustained period of time – failed to provide her son with the necessaries of life in order to cover up her own conduct. It was this intentional and self-interested conduct, rather than the appellant’s conduct in causing Miguel’s burns, that heightened her moral blameworthiness.

[20] Accordingly, I would reject this ground of appeal.

(2) Sentencing Judge’s Consideration of Mitigating Factors

[21] The appellant makes three main complaints regarding the sentencing judge’s consideration of mitigating factors in this case. First, the appellant argues that the sentencing judge erred by failing to consider remorse as a mitigating factor and by making adverse findings based on what she perceived as a lack of legitimacy in the appellant’s expressions of remorse. I would not accede to this argument.

[22] The reasons confirm that the sentencing judge was well aware that the absence of remorse is not an aggravating factor on sentencing. In this case, the defence argued that remorse was a mitigating factor. The sentencing judge considered this argument and the evidence bearing upon it and concluded that the appellant’s conduct and statements belied any genuine remorse. She held, at para. 47:

I see little, if any, indication of true remorse. Ms. Alexander is upset about what she has lost and about where she now finds herself. That is not the same thing as remorse. She regrets what happened, not because of the great tragedy of Miguel’s death, but because of the impact this has had on her own life. Dr. Woodside described her as being “in denial” and as having “difficulty acknowledging” the nature of her conduct. In my view, Ms. Alexander lacks any real appreciation of the enormity of her crime and regrets only the consequences it has had for her.

[23] The sentencing judge also considered a letter from the appellant that was received, on consent, on the day after the conclusion of the sentencing hearing. In the sentencing judge’s view, the contents of this letter further evidenced the appellant’s lack of insight into and any real understanding of the consequences of her actions, except as they affected her. Having reviewed the letter in question, it is my view that this is an available interpretation of the appellant’s statements in the letter.

[24] The sentencing judge’s findings regarding the appellant’s lack of genuine remorse were open to her on the evidentiary record. Absent palpable and overriding error, there is no basis for appellate intervention with these findings. The appellant has failed to demonstrate any such error.

[25] The appellant’s second complaint is that the sentencing judge “gave minimal consideration to rehabilitation and no consideration to the principle of restraint”. Again, I disagree.

[26] The sentencing judge held that denunciation and deterrence were the main considerations on sentencing in this case. She did not err in doing so. As the sentencing judge observed, the circumstances of this crime and this offender cried out for denunciation and deterrence rather than rehabilitation. Section 718.01 of the Criminal Code places primacy on denunciation and deterrence on sentencing for an offence that involves the abuse of a minor, and ss. 718.2(a)(ii.1) and (iii) of the Code provide that an offender’s abuse of a minor or of a position of trust or authority in relation to a victim, as occurred here, are aggravating factors on sentencing.

[27] Moreover, the sentencing judge did not ignore the goal of rehabilitation, especially for a first offender like the appellant. Near the outset of her reasons and again at their conclusion, the sentencing judge identified rehabilitation as a necessary and proper consideration on sentencing.

[28] Having alluded to the importance of rehabilitation, the sentencing judge proceeded to consider the appellant’s rehabilitative prospects on the merits. She concluded, on the state of the record before her, that the appellant’s rehabilitative prospects at the time of sentencing were minor. She noted, for example, that the appellant: (1) had shown no genuine remorse – her sorrow was entirely self-directed; (2) remained focused only on her own self-interests; and (3) lacked insight into her conduct and its consequences.

[29] These factors are all legitimate indicators of rehabilitative potential. In this case, they strongly militated against any finding that the appellant was a likely candidate for early rehabilitation. The sentencing judge’s appreciation of and assignment of the weight to be given to the evidence on this issue attract considerable deference from a reviewing court.

[30] Notwithstanding the appellant’s poor rehabilitative prospects at the time of sentencing, the sentencing judge did not discount rehabilitative progress for the appellant altogether. To the contrary, she noted, at para. 88, that rehabilitative steps, including counselling and other programming while in custody, were open to the appellant in the future.

[31] In all these circumstances, I conclude that the sentencing judge did not err in placing little weight on the appellant’s willingness to improve herself or participate in treatment. Nor does the fresh evidence sought to be adduced by the appellant before this court alter this conclusion. As Crown counsel stated in her factum: “Rehabilitation simply did not have the same operative force it has in some cases, and it certainly did not warrant the same emphasis that denunciation and deterrence warranted in this case.” I agree.

[32] Finally, the appellant complains that the sentencing judge erred by failing to take account of relevant mitigating factors such as the appellant’s difficult childhood, her abusive relationship with her common-law spouse (Miguel’s father), her history as an alleged victim of sexual assault, what she describes as her symptoms of psychiatric illness, and her post-offence efforts at self-improvement, among other matters. She also emphasizes her status as a first offender and the fact that this is her first custodial sentence.

[33] I see no error in the sentencing judge’s consideration of the mitigating factors in this case. Contrary to the appellant’s contention, the sentencing judge did not ignore the pertinent evidence regarding the appellant’s circumstances. For example, the sentencing judge considered, at some length, the evidence regarding the appellant’s mental health and psychiatric status. Based on this evidence, she held that the appellant does not have a major mental illness and does not suffer from any psychiatric or psychological condition that might explain or excuse her behaviour. Nor does the appellant suffer from an intellectual deficit that, as the sentencing judge put it at para. 38, “would have impaired [her] ability to recognize the gravity of the situation and understand the enormous risk she was taking in not getting treatment for her son”.

[34] These findings are amply supported by the medical evidence adduced at the sentencing hearing. Indeed, they are consistent with the evidence of a defence forensic psychiatrist, Dr. Scott Woodside, who offered the opinion that the appellant did not suffer from a psychological or psychiatric condition at the time of the offence and that her symptoms of post-traumatic stress and depression arose only after her arrest.

[35] The sentencing judge also took account of the appellant’s troubled history and relationship with Miguel’s father, her claim that she is a victim of past sexual abuse, her family connections and her status as a first offender. At the end of the day, the appellant simply disagrees with the weight attached to these factors by the sentencing judge. However, the mitigating effect to be assigned to these factors, if any, was a matter for the sentencing judge. Further, in my opinion, on this record it cannot be said that any of the factors identified by the appellant, standing alone or viewed collectively, required a reduction in her sentence.

(3) Other Grounds of Appeal

[36] The appellant’s remaining grounds of appeal may be dealt with summarily.

[37] First, the appellant argues that the sentencing judge erred by admitting and taking account of a victim impact statement prepared by Miguel’s paternal grandmother, which contained criticisms of the appellant and statements addressed directly to the appellant.

[38] In my view, this argument must fail. The challenged victim impact statement was admitted at the sentencing hearing with the consent of defence counsel. Crown counsel made no mention of the statement during final submissions. Further, and importantly, the sentencing judge made only brief reference to this statement in her reasons and then only for the purpose of noting Miguel’s grandmother’s grief at the tragic loss of her grandson and at the manner of his untimely death. The sentencing judge placed no reliance on the impugned statements of Miguel’s grandmother, as set out in the victim impact statement. As a result, it cannot be said that the sentencing judge’s assessment of the gravity of the appellant’s crime and her moral blameworthiness was driven by the contents of the victim impact statement.

[39] Second, the appellant argues that the sentencing judge erred by sentencing her for a “more serious offence” than the one she committed. This argument rests on the premise that the sentencing judge failed to distinguish between manslaughter by failing to provide the necessaries of life and manslaughter cases involving intentional unlawful conduct or criminal negligence.

[40] I would reject this argument. I have already concluded that the sentencing judge drew a bright line in her reasons between the suggestion that the appellant intentionally caused Miguel’s burns and her intentional conduct in withholding urgently required medical assistance for her son in the face of those burns. As I have said, the sentencing judge’s reasons clearly indicate that it was the latter conduct by the appellant that established her criminal culpability and the heightened moral blameworthiness of her crime.

[41] Further, as the appellant acknowledges, manslaughter captures a wide and disparate range of conduct. This is so even with respect to manslaughter based on failing to provide the necessaries of life. Indeed, the courts have rejected efforts to establish subcategories of manslaughter cases for the purpose of sentencing. See for example, R. v. Cheddesingh, 2004 SCC 16; R. v. Devaney, 2006 33666 (ON CA), [2006] O.J. No. 3996, 215 O.A.C. 253 (C.A.). As a result, a wide ‘range’ of sentences have been imposed for this offence.

[42] In this case, in attempting to fashion a fit and proportionate sentence for the appellant, the trial judge reviewed many manslaughter cases, including, as the appellant stresses, cases involving the traumatic death of adults or the manslaughter of children following an initial assault or unlawful action.

[43] However, the wide net cast by the sentencing judge in seeking guidance from other reported cases does not indicate that she failed to distinguish the appellant’s wrongful conduct from cases involving more serious and more blameworthy offences. To the contrary, throughout her reasons, she properly focused on the gravity of the appellant’s particular offence and her moral blameworthiness.

[44] In her reasons, the sentencing judge placed particular reliance on three cases: R. v. Klair (2004), 2004 8965 (ON CA), 71 O.R. (3d) 336 (C.A.); R. v. Won, [1993] O.J. No. 3325 (Ont. C.J. (Gen. Div.)); and R. v. Kelly (1989), 1989 9596 (NS CA), 89 N.S.R. (2d) 361 (N.S.C.A.). Each of these cases involved tragic injuries to a young child while entrusted to the care of an adult parent or other caregiver in circumstances where prompt medical assistance for the seriously injured child was not obtained by the supervising adult. In reviewing these cases, the sentencing judge was careful to identify those facts that distinguished the appellant’s conduct from that of the offenders in the cited cases and those that suggested similarities.

[45] I see no error in the sentencing judge’s thorough canvas of the available authorities in her quest for judicial guidance on the appropriate range of sentence for this offence and this offender. The sentencing judge was not required to impose a sentence that conformed with the sentences imposed in other manslaughter cases if, in her view, the circumstances of this case did not so warrant. The sentencing judge’s reasons reveal that, throughout the entirety of her sentencing analysis, she paid laudable attention to the principles of proportionality and parity in sentencing. In my opinion, she carefully analyzed the appellant’s particular moral blameworthiness in light of the specific gravity of her crime and crafted a sentence that, in all the circumstances, was neither unfit nor excessive.

[46] Finally, the appellant submits that counsel and the sentencing judge proceeded at the sentencing hearing on the mistaken assumption that recent amendments to s. 719 of the Criminal Code, which limit the amount of credit that may be afforded on sentencing for pre-sentence custody, applied to the appellant. During oral argument before this court, Crown counsel candidly conceded this error and, in light of it, acknowledged that the appellant should be afforded eight months’ additional credit for her pre-sentence custody. In light of the Crown’s revised position on this issue, I see no reason why the additional agreed credit should not be granted.

IV. Disposition

[47] For the reasons given, I would allow the appeal in part, set aside the credit given by the sentencing judge for pre-sentence custody and substitute in its stead an order granting the appellant a total of 17 months’ credit for pre-sentence custody, resulting in a total effective sentence of nine years and six months’ imprisonment. In all other respects, I would dismiss the appeal.

Released:

“JAN 13 2014” “E.A. Cronk J.A.”

“STG” “I agree S.T. Goudge J.A.”

“I agree S.E. Pepall J.A.”