WARNING

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

An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5

(1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.

486.6

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2017-09-22

Docket: C63001

Panel: Pardu, Benotto and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

N.J. Appellant

Counsel: Raymond Boggs, for the appellant Karen Shai, for the respondent

Heard: September 19, 2017

On appeal from: The sentence imposed on July 31, 2015 by Justice J. Baltman of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant beat her three year old daughter to death. She was convicted of manslaughter and appeals from the ten year sentence imposed by the trial judge.

[2] She submits that the trial judge erred in the following respects:

1. She failed to give adequate credit for stringent bail conditions.
2. She penalized the appellant for the letters of support written by her family members.
3. She treated the absence of remorse as an aggravating factor.
4. She failed to consider the immigration consequences of the sentence.

[3] We do not accept that the sentencing judge erred. There is no basis to conclude that the sentence imposed was demonstrably unfit.

[4] This was a brutal killing. The force applied to the child's head was of such a degree that the child's head was swollen to the size of a football, and brain tissue was leaking from her ear. This injury took place in the context of an older skull fracture which occurred within weeks or a few months before her death. She had other fractures to her vertebrae and rib, and many other bruises, scars and fractures on her arms, thighs, ribs and back.

[5] The appellant was almost exclusively responsible for the care of the child.

[6] At trial the defence suggested a five year sentence; the Crown sought a 15 year term.

[7] There were no mitigating factors such as mental illness having any impact on the appellant's culpability.

[8] The trial judge gave the appellant credit for pretrial custody at 7 months and a further 3 months in addition to reflect the restrictions imposed by the bail conditions. The trial judge refused further credit indicating that the appellant had breached certain bail conditions and that there was no evidence about the impact of the bail conditions on the appellant's ability to carry on normal relationships, employment and activity. The appellant focuses on the hardship caused by the enforced separation from her husband and other children, however the husband and other children moved to Alberta about a year after the appellant was released on bail. She was allowed to communicate with him by Skype 14 months after release on bail. The appellant submits that the breaches of bail conditions were minor and that she did not deliberately set about to breach the conditions. At trial defence counsel sought an 8 month credit to reflect the constraints imposed by the bail conditions; on appeal counsel asks for 27 months credit for the 18 months on bail. We see no error in the trial judge's assessment of the impact of the bail conditions.

[9] The letters from family members filed in support of the appellant suggested that she was an excellent parent who would never harm her children. The trial judge was right to give these letters little weight, given the extent and nature of the injuries suffered by the victim.

[10] The trial judge noted that the appellant did not have the benefit of the mitigating factor of remorse, a factor which had attenuated the sentence imposed in other cases to which she had been referred. She did not err in making this observation.

[11] The trial judge referred to the likely deportation of the appellant. She noted that it was impossible to predict the outcome of any ministerial decision on compassionate grounds, but indicated she would proceed on the basis that the appellant would be deported and gave that factor "some modest weight." This offence was so serious that the likelihood of deportation would have had no impact on the sentence.

[12] Accordingly, for these reasons, leave to appeal is granted but the appeal from sentence is dismissed.

"G. Pardu J.A."

"M.L. Benotto J.A."

"Grant Huscroft J.A."