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), (2.1), (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 in respect of a victim or a witness, or on application of 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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, 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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(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 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; 2015, c. 13, s. 19

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: 2018-08-29

Docket: C63478 & C64369

Panel: Watt, Huscroft and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

M.J. Appellant

Counsel: Richard Litkowski, for the appellant Hannah Freeman, for the respondent

Heard: August 22, 2018

On appeal from: The conviction entered on November 3, 2016 and the sentence imposed on February 16, 2017 by Justice Richard A. Lococo of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Overview

[1] Following a two-month jury trial, the appellant and her previous boyfriend were found guilty of criminal negligence causing bodily harm. They each received a two-year sentence on the criminal negligence count. The appellant was also found guilty of failing to provide the necessaries of life, for which she received a 12-month concurrent sentence. The victim was her 20-month-old child.

[2] The appellant advances an in-person conviction appeal, assisted by Mr. Litkowski as duty counsel, and a solicitor sentence appeal. We gave our decision at the conclusion of the hearing, dismissing the conviction appeal, except to the extent of entering a stay of proceedings on the failing to provide the necessaries count. We also dismissed the sentence appeal. These are the reasons for that result.

The Conviction Appeal

[3] The conviction appeal raises two grounds. The appellant contends: (a) that the trial judge erred in his instructions to the jury regarding one of the elements of failing to provide the necessaries of life; and (b) that the finding of guilt on the failing to provide the necessaries count should have been stayed pursuant to the principles in R. v. Kienapple, [1975] 1 S.C.R. 729. We disagree with the first submission, but agree with the second.

[4] The first ground of appeal relates to the trial judge's instruction to the jury that endangering the life of another person means to "put that person in a situation or a condition that could cause the person to die (emphasis added)." The appellant argues that the use of the word "could", instead of the word "would", constitutes a misdirection.

[5] Considered in context, we see no error in the charge on this point. The trial judge was simply explaining to the jury how to approach the question regarding whether the child's life had been endangered by the failure to provide the necessaries of life. The relevant portion of the passage reads:

The next question is: Did the failure to provide necessaries of life endanger [the child's] life?...

…[T]he Crown [must] prove that [the] conduct of the accused in failing to provide necessaries of life for [the child] endangered her life. To endanger the life of another person is to put that person in a situation or a condition that could cause the person to die. [Emphasis added.]

[6] The trial judge went on to correctly explain that it is not sufficient for the Crown to prove simply that the child's life was "actually in danger" as a result of the failure to provide the necessaries of life. The Crown had to also prove that "it [was] objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to [the child's] life" (emphasis added). The jury was instructed that, in order to be satisfied of this essential element, they had to be satisfied that a "reasonably prudent person in the accused['s] circumstances would have foreseen that his or her failure would lead to a risk of danger to [the child's] life" (emphasis added). This instruction was repeated on multiple occasions.

[7] The jury would have understood that the child's life had to be placed in actual danger (a situation that "could" cause the person to die) and that it was objectively foreseeable that the failure to provide the necessaries of life "would lead to a risk of danger to the life" of the child (emphasis added): R. v. Naglik, [1993] 3 S.C.R. 122, at p. 143; R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at para. 8. Considered in the context of the charge as a whole, these instructions do not reflect prejudicial error.

[8] As for the second ground of appeal, we agree with duty counsel that the trial judge erred by not entering a conditional stay of proceedings on the failing to provide the necessaries of life count. Crown counsel also agrees. There was a clear factual and legal nexus between the criminal negligence and failing to provide the necessaries of life counts. Indeed, the latter was entirely subsumed in the former. Applying the Kienapple principle in this context, where convictions for both criminal negligence and failing to provide the necessaries of life have been entered, "courts have systematically recorded a conviction of the criminal negligence, as the more serious of the two offences, and entered a stay on the charge of failure to provide the necessaries of life": J.F., at para. 13. We have been provided with no reason to depart from this reasonable approach. Accordingly, we would set aside the conviction on the failing to provide the necessaries of life count and enter a conditional stay of proceedings in its place.

The Sentence Appeal

[9] The appellant also appeals from sentence. As this was a jury trial, the sentencing judge was required to make some factual findings, the most significant of which was that the appellant's co-accused perpetrated the actual assaults. Despite that finding, the trial judge determined that there was "no principled basis for imposing different terms of imprisonment" on the appellant and her co-accused.

[10] As her primary ground of appeal, the appellant argues that the trial judge erred in failing to distinguish her from her co-accused. She contends that because her co-accused inflicted the actual assaults, she should have received a lower sentence than her co-accused. She also points to some other distinguishing factors, including that her co-accused had a criminal record.

[11] Despite Mr. Litkowski's very able submissions, we do not agree that the trial judge was duty bound to impose a lower sentence on the appellant.

[12] The trial judge was alive to the fact that the appellant's co-accused actually administered the assaults and he was alive to the fact that he needed to consider the two accused separately. In the end, though, he came to the conclusion that they should be sentenced to the same term. In coming to that conclusion, the trial judge highlighted the fact that there was "no principled basis for imposing different terms" because he saw their "degree of culpability" as "comparable". The trial judge found that, although the appellant's co-accused actually committed the assaults, she failed in her duties as a "mother to protect her [child] from harm."

[13] The trial judge only came to that conclusion after having extensively reviewed the record, including the factual underpinnings of the offence. Those underpinnings included the fact that the abuse had been ongoing for up to a few weeks prior to the culminating event that led to an ambulance being called. On that day, the appellant had left the child alone with her co-accused. Upon admission to the hospital, it was discovered that the child had a lacerated liver, pelvic fracture, and a subdural haematoma. Importantly, a CT scan revealed that the child had earlier suffered a subdural haematoma and a rib fracture that were likely incurred in the previous two to three week period. As the trial judge noted in his reasons for sentence, it would have been "obvious" to the appellant that her child was being harmed by someone. It was open to the trial judge to arrive upon that factual conclusion. Bearing that conclusion in mind, and having regard to the appellant's heightened position of trust in relation to her young daughter, we would defer to the trial judge's determination that the appellant and her co-accused's level of culpability were "comparable".

[14] In addition, although the appellant is right to point out that her co-accused had a criminal record, and she did not, the trial judge turned his mind to that fact. He also observed, correctly in our view, that the co-accused's unrelated criminal record was from almost 20 years previous (the last entry being in 1998), while the co-accused had been a teenager. In these circumstances, it was open to the trial judge to treat the co-accused's record as being of minimal value in distinguishing between the two accused he had to sentence.

[15] The appellant also maintains that a two-year sentence was demonstrably unfit. We disagree. The trial judge carefully reviewed the relevant sentencing principles. Having regard to the circumstances of this case, he correctly concluded that the predominant sentencing principles were denunciation and deterrence: R. v. R. (W.) (2004), 197 C.C.C. (3d) 566 (Ont. C.A.), at paras. 14-16, 30. He considered the appellant's background and the strides she has made since the offence. He reviewed all mitigating and aggravating factors. Having done so, he determined that a penitentiary term was required. It cannot be said that the trial judge exercised his discretion unreasonably or that the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 49.

[16] The appellant also advances fresh evidence to demonstrate that she has made additional significant strides since she was sentenced. We accept that the appellant has made strides while incarcerated, and has continued to make strides while on bail, including improving the level of her education. By all accounts, it appears that she is dedicated to turning her life around. Undoubtedly, this is a factor that will be taken into account in the determination of her release date. Despite that fact, we see no error in the trial judge's approach to the sentencing.

Conclusion

[17] We dismiss the conviction appeal, except to the extent of setting aside the conviction for failing to provide the necessaries of life and substituting a conditional stay in its place. We grant leave to appeal sentence, but dismiss the sentence appeal from the criminal negligence count.

"David Watt J.A." "Grant Huscroft J.A." "Fairburn J.A."