R v WK, 2012 ONCJ 58

COURT FILE NO.: 2811 998

DATE: February 7, 2012

Citation: R v WK, 2012 ONCJ 58

ONTARIO COURT OF JUSTICE

(Central East Region)

B E T W E E N:

Her Majesty The Queen

T. D’Eri, Counsel for the Crown

• and -

W.K.

T. Balka, Counsel for Mr. W.K.

HEARD: January 20, 2012

Reasons for Sentence

BELLEFONTAINE, J:

[1] These are my reasons for sentence in the matter of W.K. who has plead guilty to one count of failing to provide the lawful necessities of life to his seven week old son who required medical aid, contrary to s.215(1) (a) of the Criminal Code of Canada. The admitted facts are as follows:

Agreed Statement of Facts:

The accused is the biological father of the victim in this matter, K., who was born on […], 2009. Both Mr. W.K. and his wife are profoundly deaf. K. is the first child for both parents.

On November 19, 2009 K. was brought to Lakeridge Health Hospital by his parents arriving at 10:14 p.m. suffering from fussiness and seizures. K. was just over 7 weeks old at the time and had only been in the care of his parents up until that time. The accused had been home from work since the time of K.’s birth due to an injury to his shoulder and the child’s mother, C.M., had been on maternity leave.

At the hospital K. continued to experience seizures, one lasting 15 seconds and additional seizures observed during the time he was under hospital care. He was noted to be awake and have a fixed gaze (staring in one direction, not looking around).

A CT scan at the hospital showed massive bleeding in and around the brain and possible fracture of the skull. Brusing of the left scrotum extending to the buttock was noted.

K. remained in hospital intensive care until a physical examination was conducted in the Intensive Care Unit at the Hospital for Sick Children. Following a SCAN unit assessment, K. was documented to have the following injuries:

• A right linear parietal skull fracture, i.e. a fracture on the right side of the skull

• Metaphyseal fractures (which are fractures through the new bone growth areas at the end of the limb bones) that can be listed as follows:

(1) healing fractures of the left distal femur (thigh bone above the knee)

(2) healing fractures of each proximal tibia (larger bones of the shins below the knees)

(3) right proximal fibula (smaller bone of the shin below the knee)

(4) right distal fibula (smaller bone of the shin above the ankle)

• Fractures of the lateral right 5^th, 6^th, 7^th and 8^th ribs

• Intrapareuchymal hemmorages (bleeding within the brain)

• Subarachnoid hemmorages (bleeding around the brain)

• Bruising of the perineum (area between the genitals and the anus)

• Bruising on the buttocks.

The fractures of the ribs and the distal femur were not associated with any radiologic signs of healing indicating they had occurred within 7 days or so preceding the initial x-rays and therefore did not date back to birth. The other injuries could not be dated but were not attributable to birth or any medical condition.

K. spent 3 days in the pediatric Intensive Care Unit and stayed in hospital for an additional 10 days.

It was concluded that the injuries to K. were representative of multiple inflicted traumatic injuries that were not attributable to birth or a medical disorder.

The accused, Mr. W.K. admits that on multiple occasions while caring for K. his actions or negligence led to the injuries sustained by K., including:

• Dropping the infant causing him to strike his head on more than one occasion.

• Falling asleep while holding the infant, the infant fell, and in an effort to catch him grabbed him by one or both of his legs.

• Continuing to hold the baby on his weak shoulder, knowing that he had dropped the baby previously as a result of trying to use that shoulder for support.

• Sleeping next to the baby and rolling over on him and possibly striking him in the head with his arm.

• Failing to seek medical attention immediately following any of these incidents.

• Failing to seek medical attention immediately upon observing symptoms that were caused by the infant’s injuries.

Mr. W.K. accepts by his guilty plea that he caused the injuries to K. through his negligence and therefore failed to provide the necessaries of life for his child.

In addition to the preceding agreed facts there is no dispute that K. was appropriately brought to his Doctors office for routine checkups on October 2nd and 7^th with no indications of any injuries or problems. Around the time of a baby shower held on November 8^th a visitor named Vicki Doucette noticed K to have a problem with his head and leg and asked the parents what was wrong. The parents did not initially respond but Mr. W.K. did later say that he had been feeding K. and fell asleep and dropped him and caught him by his legs. He stated the baby just cried for a couple of seconds. Ms. C.M. said the fall happened a couple of days before the baby shower. Ms. Doucette urged the parents to take K. to the hospital but they responded no – it’s not a problem. At the baby shower none of the people present commented on any problem with K. Immediately following the baby shower, November 9^th, 2010, K. had another routine visit at the Doctors. There is no indication that any injuries or abnormalities were noted at that time.

Mr. W.K. is 38 years of age and has no record. He has been deaf since the age of 14 months. He has overcome his loss of hearing to do very well in the community. He has graduated from high school and attended for two years of business courses at the Community College level. He did not complete the Community College program because of the lack of sign language interpreters. He has held a number of job positions, most recently for three years with the Royal Bank of Canada processing night deposits, but had to leave that position due to a shoulder injury. He is currently on an Ontario Disability Support Pension. Mr. W.K. has spent periods of time caring for his elderly, ill parents, and is regarded highly by the extended family who the probation officer spoke to. The pre-sentence report was a positive one and I can quote from it as follows:

All sources expressed their absolute disbelief that the offender could or would ever deliberately hurt his son. They described him as being a loving

Father, who was thrilled when he learned that he was going to be a parent.

His being deaf was not considered by sources in any way to be an impediment to his being a good parent. His mother opined that her son would not hurt the baby “for the world” and described the baby as being “their life.” Mr. W.M., his father-in-law stated that he has known the offender for a significant portion of his life and has never seen any indication of the potential for a problem of this nature. The subject was consistently described as being a happy, mild mannered individual of even temperament who has never been known to respond in aggression or frustration.

Mr. W.K. is a modest social drinker, alcohol and drug abuse are not factors related to the commission of the offence. He married his long-time girlfriend C.M. in 2006. Their relationship is indicated to be a loving and stable one and violence free.

In short, Mr.W.K. is a high-functioning individual of previous good character, who has persevered to overcome a significant challenge in his life, and accepted responsibility for the offence.

The Crown has proceeded by indictment in this matter. The offence in question now provides for a penalty of up to five years in prison. It had previously had a maximum sentence of two years and many cases supplied by counsel were decided under the previous sentencing regime. The Crown has submitted a sentence of 18 months to two years less one day, followed by two years of probation is appropriate. The defence has submitted that a one year conditional sentence would be more reasonable given the circumstances of the offender.

The relevant sentencing principles are set out in s.718 of the Criminal Code of Canada as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;…

(d) to assist in rehabilitating offenders;…

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Objectives – offences against children

718.01. When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

218.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,…

(ii.1) evidence that the offender in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim…

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; …

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders…

A broad range of sentences have been imposed in past cases of failing to

provide necessaries. As noted by Justice Harris in R. v. Beaudry [2006] O.J. No. 5708:

“15. In two Ontario cases decided shortly after the conditional sentence section was proclaimed, sentence was suspended and probation imposed. See R. v. Drummond [1997] O.J. No. 6390 (O.C.J.) and R. v. M.M. [1998] O.J. No. 3032 (Ont. G.D.).

16. Since then, conditional sentences have been both imposed and rejected in cases of failing to provide the necessities of life to a child. Kent J. imposed a conditional sentence in R. v. Campbell [2005] O.J. No. 3642 (Ont. S.C.J.). Gauthier J. declined this option in R. v. D.E. [2005] O.J. No. 2589 (Ont. S.C.J.).

17. In R. v. Peterson 2005 37972 (ON CA), [2005] O.J. No. 4450 the Ontario Court of Appeal upheld the trial judge’s decision not to impose a conditional sentence on a charge of failing to provide the necessities of life for an elderly parent, but said at paragraph 58:

The trial judge’s rejection of a conditional sentence in this case was in proportion to the gravity of the offence and the degree of responsibility of the offender. In saying this, I do not mean that a conditional sentence may not be appropriate in some cases. When a trial judge decides to impose or not impose a conditional sentence, the judge engages in a discretionary exercise that is entitled to considerable deference.

18. In addition, Borins J.A., in his dissent said at paragraph 74:

Without minimizing the seriousness of how the appellant treated his father, in my view, the sentencing objective of general deterrence could have been achieved by the imposition of a conditional sentence.”

In Peterson, when the accused did not ensure his father, who lived in an adjoining apartment ,was eating or being cared for, the Court, relying on cases of abuse against children, stated at paragraph 59:

“Sentences for this type of offence genuinely appear to fall between four and eight months incarceration with a period of probation to follow.”

More recently the Ontario Court of Appeal dealt with a child fatality in R. v.

Chuttanath, [2009] O.J. No. 1071. The 22 month old child received a number of injuries over a period of ten days leading to seizures that resulted in a babysitter rushing the child to hospital where he died. It was accepted that the accused mother was not responsible for the obvious injuries but was aware of them and did not bring the child to the hospital. On appeal the Court commented on the six month sentence imposed in the following terms:

“In our view, having regard to the enormity of the crime, which resulted in the death of an innocent child, the sentence imposed by the trial judge was manifestly unfit even accepting the respondent was a first offender. A sentence of 18 months imprisonment would have been fit under the old regime where the maximum penalty was two years. We make no comment on what the appropriate sentence would be under the present regime in which parliament has seen fit to raise the maximum penalty to five years.”

The defence have relied upon a number of cases in support of the request for

a conditional sentence including R. v. Namfo [2008] O.J. No. 2742 (O.C.J.) in which Justice Duncan imposed a conditional sentence for a daughter who failed to provide the necessaries of life for her aged and horribly infirm mother who died as a result. The daughter had been dependent on the mother for her whole life up until the mother’s infirmity. She suffered from depression and on the psychiatric evidence, dealt with stress by avoiding issues such as the high care needs of her mother. Given the absence of any intentional cruelty and the plea of guilty, Justice Duncan felt a conditional sentence was appropriate.

In R. v. Campbell [2005] O.J. No. 3642 (O.S.J.) Justice Kent with brief reasons supported a joint submission for a conditional sentence where a parent left their 18 month old toddler unsupervised for a period of time. The toddler climbed through an unsecured third floor window, fell and died.

In R. v. Guimond [2010] (M.J.) No. 196, Justice Martin granted an 18 month conditional sentence for a mother who in the course of rushing to the washroom, placed her two year old child on a chair near some stairs which were barricaded by a sheet of plywood. The child managed to get over the plywood, fell down the stairs and was rushed to hospital where he died.

In R. v. Beaudry [2006] O.J. No. 577 (O.C.J.) Justice Harris

supported the joint submission for a conditional sentence. The mother had been away, and on returning, her eight month old was asleep. The following morning she noticed the infant’s head was swollen and on inquiring was told the infant may have been hit on the head by a toy truck by another of the children. Her partner actively discouraged her from taking the child to the hospital, but she called a friend who looked at the injury resulting in the child being taken to the hospital at 2:00 in the afternoon. The child had a fractured skull and ribs but to the time of sentencing did not appear to suffer any permanent handicap as a result.

The defence further rely on R. v. Drummond [1997] O.J. No. 6390(O.C.J.) in which Justice Hansen considered a Crown request for a conditional sentence for a mother who suffered from a major mental illness which resulted in neuro-vegetative symptoms. She failed to advise doctors upon her child’s birth that she had inserted a pellet rifle into her vagina and fired a pellet. The pellet led to infections and medical distress for the newborn. The attempted murder charges were not pursued on the basis of her mental health issues preventing her from being criminally culpable. Justice Hanson imposed a period of probation noting that seven months of the defendant’s twelve and a half months of psychiatric hospitalization following the birth were in a secure facility.

In R.v. Mimi [1998] O.J. No. 3032 (O.C.J. Gen. Div.) Justice Webber accepted a joint submission of counsel for a suspended sentence. The 38 year old mother had failed to provide proper food or nutrition or emotional stimulation to a child resulting in life-long negative effects. The mother had severe intellectual disabilities and functioned at the level of a six to eight year old and according to an expert report, referred to by Justice Webber, never had the capacity to care for the child.

While the foregoing cases relied upon by the defence do support that circumstances will exist that support a conditional sentence or suspended sentence being imposed, given the significant distinguishing factors, I do not consider them to be determinative of the sentencing in this matter.

There are a number of mitigating factors in Mr. W.K.’s favour.

1. He has entered a plea of guilty in this matter and accepted responsibility for his criminal wrong doing.

2. He is 34 years of age and has no previous criminal antecedents.

3. He has overcome his deafness to become an educated, regularly-employed and contributing member of the community.

4. All collateral sources support him being an empathetic and gentle individual who has cared for his parents and was a loving father. The offence is out of character for him.

5. The early injuries, which I am satisfied beyond a reasonable doubt occurred before the baby shower based on the evidence of Ms. Doucette, did not attract the attention of a number of people, making it less clear to Mr. W.K. that medical attention was required for them.

The Crown concedes that they cannot prove criminal culpability for the

injuries and have withdrawn the aggravated assault charge laid against Mr. W.K.. As well the count of failing to provide necessaries has been particularized as failing to provide medical assistance and medical aid and does not include a particular charging Mr. W.K. for his negligent care of K. that resulted in the injuries, accordingly the sole basis for the sentence to be imposed is his neglect in failing to bring K. to the hospital for timely medical care when that need was apparent. The Crown has submitted that Mr M.K.’s position as the parent who caused the injuries is nonetheless a significant aggravating fact for me to consider.

The best information available to date is that K. has completely recovered from his injuries with no long-term negative effects. While he is still on anti-seizure medication, he is meeting all of his developmental milestones.

There are a number of aggravating factors in this matter which also have to be considered:

(a) K.’s extremely young age as a newborn placed him in a category where any meaningful trauma or concern called for immediate medical attention. Any accident or trauma would generate a heart-stopping response in a reasonable parent and result in anxious consideration of whether medical attention is appropriate.

(b) Multiple accidental traumas were inflicted on the child including at least two drops on his head. Given the extent of the injuries, which included the fractured skull, five broken leg bones and three broken ribs, the incidents have to have been significant. Accordingly Mr. W.K. has to have considered whether to take the child to the hospital and consciously decided not to in the hope that his actions in harming K. would not be detected. Having inflicted at least one round of injuries on K. before others, he had time to reflect on the required proper course of action and consider the urgings of Ms. Doucette.

(c) Mr.W. K. personally inflicted the injuries and had full knowledge of them and given the extent of the injuries, must have had some appreciation for the severity of the incidents that caused them. Given his role in inflicting the injuries, I consider him to have had the primary parental responsibility for insuring that K. was appropriately checked out by a medical doctor.

(d) I am satisfied beyond a reasonable doubt on the admitted facts that K. was first injured before being seen by Ms. Doucette. Accordingly her comments that there was a problem with K.’s head and that K. should be taken to the hospital to be looked at by a doctor significantly adds to Mr. W.K.’s culpability.

(e) The head is one of the most fragile parts of the human body and an injury to it is well-known by all to run the risk of significant long-term harm to an individual and particularly an infant. To drop K on his head on multiple occasions without taking him to the hospital reflects a wanton disregard for K.’s well-being which would legitimately outrage the community and require a significantly denunciatory sentence.

(f) Some injuries had existed for at least ten days before K. was taken to the hospital. While we do not know the extent of the earlier injuries and the extent of the pain being suffered by the infant over that time, it would have to be seen to be significant. Mr. W.K.’s willingness to have the infant suffer over that period of time is reprehensible and also requires a significant denunciatory sentence.

I have considered the request for a conditional sentence and am satisfied that Mr. W.K. does not represent a risk to the community or a risk of re-offending. However, I do not consider that a conditional sentence can be fashioned that will meet the needs of general deterrence and denunciation. While I acknowledge a number of the cases referred to are in many ways aggravated above this case, particularly those associated with the death of the child or elderly parent, they have mitigating or unusual factors associated with them which in my view distinguish them from this case. In many the criminal culpability associated with the offence was marginal, in others the circumstances of the offender substantially reduced their personal culpability. Given the multiple incidents of trauma that were allowed to go without medical attention for a significant number of days, a jail sentence is called for. In concluding a jail sentence is called for I do not consider the range proposed by the Crown to be appropriate given the plea of guilty and the absence of long term harm to K. I am mindful as well that a jail sentence will be problematic for Mr. W.K., given his lack of hearing and injured shoulder, which will potentially result in his incarceration being in a more punitive protective custody setting. I have no evidence however that the institution will not be able to accommodate his special needs.

K. was at the mercy of his parents. Mr. W.K. over a significant period of time failed in his duty to protect and nurture the infant. As stated by the Court of Appeal in R. v. Naglik 1991 2702 (ON CA), [1991] O.J. No. 789:

“The imposition of severe sentences is the only means available to a court to attempt to protect the defenceless from those parents who would breach the primary duty of protecting a newborn child.”

The sentence in this matter will be one of nine months. That will be followed by probation for three years. The probation order will include many statutory terms and conditions which I will direct the court staff to explain to you before you leave the building today. One of them is a term that you be of good behavior and keep the peace. As well you will be required to report once per month or as often as required to a probation officer, and reside at a place approved of by your probation officer. Further, you will attend and actively participate in any assessment and counseling that may be required of you by your probation officer to the satisfaction of your probation officer. You will not be in the presence of K. in the absence of another adult, except with the prior written revocable consent of the Children’s Aid Society filed with your probation officer or except in accordance with any family court order.

Given Mr. W.K.’s potential medical and rehabilitation needs, I am not opposed to temporary absence passes or parole being granted.

P. L. Bellefontaine J.