Court File and Parties
Court File No.: 11-7729
Ontario Court of Justice
Her Majesty the Queen v. A.V.
Reasons for Sentence
Before the Honourable Madam Justice H. Perkins-McVey
Date: May 17, 2013, at Ottawa, Ontario
Publication Ban Notice
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO A SECTION 486.6 ORDER OF JUSTICE H. PERKINS-McVEY, ONTARIO COURT OF JUSTICE
Appearances
L. Tansey-Miller – Counsel for the Crown
S. Friedman – Counsel for the Accused
Reasons for Sentence
PERKINS-McVEY, J. (Orally):
Charges and Guilty Plea
A.V. entered pleas of guilt to one count of assault causing bodily harm to G.V.1, contrary to Section 267(b) of the Criminal Code of Canada. The Crown elected to proceed summarily.
Exhibits and Evidence
In preparation for the sentencing hearing, a Pre-Sentence Report was obtained (Exhibit 1). A book of reference letters was filed (Exhibit 2), containing 29 separate letters of reference, including a letter from the accused's wife. Exhibit 3 is a statement by the accused, read into the court record. Exhibit 4 is the resume of A.V. Exhibit 5 is an Anger Management Skills Workshop Program, which A.V. now teaches or facilitates.
Victim Impact Statements from S.V., G.V.1, and G.V.2 were filed as part of Exhibit 6, along with the original Victim Impact Statement of G.V.1 with her original drawing (Exhibit 6(A)). These statements were read into the court record, with the statements of G.V.1 and G.V.2 read with the assistance of interpretation.
Included in Exhibit 6 is a letter from Dr. David Palframan from the Children's Hospital of Eastern Ontario, setting out the anxiety and trauma observed in the victim, G.V.1. The Crown filed, as Exhibit 7, photos of G.V.1's injuries: extensive black and blue bruising to a significant portion of her buttocks and less significant bruises to her upper forearms and upper arm areas.
Positions of Counsel
Defence counsel, on behalf of A.V., seek a conditional discharge with probation, arguing that such a disposition is not contrary to the public interest and that general deterrence and denunciation can be achieved by imposing sufficiently strict conditions. Defence counsel argue that a sentence endorsing real principles of restraint does not mean that the Court, in any way, endorses violence against children.
The Crown seeks a jail sentence of 45 to 60 days plus 12 months of probation to ensure that the conduct of A.V. is denounced and to ensure that the public gets the message that this type of conduct cannot be tolerated.
Statutory Framework
The Crown reminds the Court that in addition to Section 718 of the Criminal Code, which sets out the purpose and principles of sentence, Section 718.01 specifically sets out that when a Court imposes a sentence for an offence that involves the abuse of a person under the age of 18, it shall give primary consideration to objectives of denunciation and deterrence of such conduct.
Under Section 718.2(a)(ii.1), evidence that the offender abused a person under the age of 18 is an aggravating circumstance. In addition, under Section 718.2(a)(iii), it is deemed to be an aggravating factor if the offender abused a position of trust or authority in relation to the victim. All of those aggravating factors apply in this circumstance.
Section 718.2 also requires that an offender shall not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
Facts
The facts of this case, acknowledged by the accused by his plea of guilt, are as follows:
The accused and his wife adopted G.V.1 and G.V.2, who had been crown wards of the Children's Aid Society. G.V.1 had been at school and was displaying signs of anxiety and upset, saying that she needed a particular classmate's phone number. She told her teacher that her father had made her write out lines and that if she did not bring home the number there would be consequences.
The teacher reported this to her principal, and an arrangement was made for a meeting with parents at school the following Monday. The accused's wife attended the meeting. The next day, G.V.1 arrived at school accompanied by her father. She reported to her teacher that she had received consequences from the night before.
G.V.2 was interviewed and advised that his father was angry because G.V.1 had told her teacher. It was reported that as she was being spanked and crying out to stop, the accused's response was to close the bedroom window, presumably so that the neighbours or others would not hear her cries. G.V.1 reported that after this spanking she was told that next time there would be 12 slaps.
The accused agrees that he spanked G.V.1 over her clothing and that his actions caused the extensive bruising to her buttocks shown in Exhibit 7. He does not accept that he caused the less significant bruises to her arms, which the Crown states were caused when he was holding her.
G.V.1 was seven years old when this abuse occurred. The children were apprehended by the Children's Aid Society on May 31, 2011, and the accused was arrested. In July of 2011, both A.V. and his spouse relinquished their parental rights to both G.V.1 and G.V.2, thereby making the children Crown wards. The children were thereafter legally adopted by the accused's brother, S.V., and his spouse.
Background of the Accused
A.V. is 41 years of age and a first-time offender. His parents divorced when he was a few months old, and he was largely raised by his mother as a single mother. The accused indicated that his mother often drank to excess and that she was physically and emotionally distant and abusive. It was reported that the accused was spanked himself as a method of discipline.
The accused has had and continues to have a number of issues with family relationships. As a result of an issue with his mother at age 13, there has been a distance in their relationship, which has become detached and cynical. In 1999, he had an argument with his brother S.V., and they apparently did not really speak to one another again until 2005. It is reported that the accused had an argument with his half-brother and has not spoken to him since.
As a result of these offences, the accused was charged on May 31, 2011, and he and his wife relinquished all custodial rights. His family continued to visit the children, which angered the accused, and so he relinquished contact with his family also. In the Pre-Sentence Report, the accused acknowledges he will likely never have a relationship with his family again. He states he is not upset by this.
His family has expressed concern about the subject's pride and inability to let things go. The accused acknowledges in the Pre-Sentence Report that when he became a father he was less conciliatory than he thought he would be; that he did not let things go by as he thought he would. He admits that as a parent he was strict and that being a father was a lot harder than he thought.
Parenting and Discipline
In discussing the offences with the probation officer in the Pre-Sentence Report, the accused accepted responsibility for his actions but did provide some justifications. He indicated his daughter had a troubled past and that this was not entirely disclosed to them, and that indeed, if it had been, they may have been in a better position to deal with the behaviour.
It is noted in the Pre-Sentence Report that in December of 2010, some five months before these offences, the Children's Aid Society had become involved with the family after they received an anonymous call reporting concerns regarding discipline in the V home. The children denied the allegations at the time, and the Children's Aid Society closed the file. Since being apprehended in May of 2011, the children have disclosed that several of the concerns were true.
The accused admits to spanking his son once and his daughter on three separate occasions, with the last occurrence resulting in his arrest. The accused denies spanking his children out of anger, stating that spanking was just something he grew up with. He explained that when he spanked his daughter he was following through on what he said he would do if she misbehaved. He said it was more out of desperation and not knowing what to do anymore.
The accused says that he does not think he has an anger issue but, to his credit, he expressed that he is willing to explore more about anger issues, including a willingness to attend counselling or see a therapist, although he would prefer to see a life coach as they focus on the present rather than the past. It appears, however, from the difficulties he has had with family relationships that there may be past issues he needs to deal with.
The accused says that on being confronted about possible anger issues by the CAS, he read three books on anger management, that he has completed training as a life coach for anger management, and that he now provides workshops in this area. The accused and his wife say that they do have some regrets about relinquishing custody of the children, but they have no plans for children in the future.
Rehabilitation and Community Standing
In addition, as indicated in the Pre-Sentence Report, the accused has recognized the negative impact alcohol consumption has had on his family in the past and he has chosen to cease drinking and attend Alcoholics Anonymous, although there is no evidence in the Pre-Sentence Report or in the letters of support provided that alcohol played a significant negative role for him or that it played any role in the commission of these offences.
The accused has a positive work history and is now engaged in the capacity as a life coach. His lawyers filed information that, in order to work in this capacity, he may be required to cross international borders, and from the sample contract that was provided, it appears that he had to indicate that he had no criminal record in order for the contract to be completed.
By and large, apart from identifying family dysfunction and some of the emotional relationship issues in the Pre-Sentence Report, the Pre-Sentence Report is a positive one. The accused shows remorse and regret for his actions. He appears to have a pro-social orientation and is a candidate for community supervision.
The probation officer states:
"It appears that the subject's involvement in the criminal justice system thus far has caused him to reflect on his choices and the consequences. The subject's risk level for recidivism could very well be reduced if he continues to have this insight and follows through with counselling."
As evidenced by the letters of reference filed by defence on behalf of the accused, he clearly has strong support from his wife, her family, colleagues, and friends in the community. These letters also demonstrate that he is a highly regarded leader in the Francophone community. These letters of support acknowledge that the accused is before the Court on serious charges and, while not excusing his behaviour, attest that these actions are out of character for A.V. and that he is a man generally of calm demeanour, a man of integrity, a man who works tirelessly for the good of his community and for those that are less fortunate.
The accused has also worked with charitable organizations, such as the Make a Wish Foundation, and has done other volunteer work for various francophone community organizations. He stepped down from those organizations upon being charged in order to protect the integrity of those organizations.
Impact on the Victims
The effect on the victim and her family as a result of this offence has been profound. It has been exacerbated by the pre-existing problems and issues she may have suffered prior to her being adopted by the accused and his spouse. It is reported that the victim and her brother are being followed by a psychologist, social workers, psychiatrist, and doctors; that they are suffering from post-traumatic stress disorder and severe attachment disorder. The children are described as nervous, scared, and untrusting.
There is no question that some of these issues were pre-existing, but undoubtedly, significantly worsened as a result of the assaultive acts of the accused, by being rejected by the accused and his spouse with swift relinquishment of their parental rights, and by the adjustment of having, once again, to find a new family; albeit it was his brother and sister-in-law who have taken over care of the family, so there is some continuity within the larger family.
The effect of this offence can also be seen, even more so today than on the last occasion, by this divided courtroom. We have the accused and his supporters on one side. We have other members of the family and the current mother of the children in court today. This is one of those cases where fixing those divides are beyond the jurisdiction of this Court, but all could benefit from a restorative rehabilitative approach. Families last long after dispositions of the Court.
Case Law Analysis
Both the Crown and the defence have provided a number of decisions in respect of their positions. Although not one particular case is on point with exactly the same facts, there are a number of principles that must be evaluated.
In Regina v. C.J.D. (2012 YCJ 21), the accused had pled guilty to a common assault on his 30-month-old stepson. He spanked him, lifted him up and dropped him on the bed, and covered his mouth. These three incidents occurred over the same evening. The Court found the injuries to be minor and the bruises to be transient. The Court found it to be an assault by an unskilled parent acting out of frustration.
Ultimately, although not condoning any assault on a child and stating that every assault against a child is serious, the Court found that it is incorrect to assume that a charge that results in a discharge does not provide deterrence. Quoting the Alberta Court of Appeal in Regina v. Lawry, Justice Heino Lilles states:
"The judge must weigh and balance all of the relevant factors, and decide whether the discharge sought would be contrary to the public interest. The Court also recognizes there is not always the imposition of a criminal record which has the general and specific deterrent effect. The much greater deterrence is in having to participate in the judicial process. In many cases it is the concern of having friends, relatives and spouses learn of the conviction. It is the fear of public notoriety which provides the real deterrent. The imposition of a criminal record adds nothing in terms of deterrence."
In Regina v. C.J.D., the Court finds clearly a conditional discharge is in the accused's interest and then determined that in that exceptional case it was not contrary to the public interest, given the minor nature of the assault, given his early guilty plea, given that his acts occurred out of frustration and immaturity, and given the extraordinary rehabilitative efforts the accused had gone to prior to sentence and the devastating effect a record would have on the family in the C.J.D. decision.
In Regina v. M.R., the Court confirmed that general deterrence was the prominent sentencing consideration, that the accused's use of force was unreasonable. However, the Court found the reason for strapping his son was discipline as a result of his son's genuine misbehaviour and not out of anger or frustration. The blows caused ugly red welts. The accused in M.R. pled to an assault with a weapon. In that case, the accused had commenced counselling and the parties were working towards family reunification.
The decision cites Regina v. Dupperon, [1984] 16 CCC (3rd) 453 (Saskatchewan Court of Appeal), where the accused was initially convicted of assault causing bodily harm arising from an incident where the father strapped his 13-year-old emotionally disturbed son, who was punished for running away from home. The beating left linear bruises on the boy's buttocks four inches long and half an inch wide. The Court, in that case, imposed a $400 fine and twelve months probation. On appeal, the bodily harm conviction was set aside and a conviction on common assault was rendered. The fine was ordered to stand. The probation was removed.
In Regina v. M.R., the Court declined to impose a jail sentence, finding that the accused has already paid a very real price for his behaviour and had commenced counselling to address his underlying difficulties.
Mitigating Factors
I find there are a number of mitigating and aggravating factors. I take into account a number of mitigating factors:
The accused entered a guilty plea, sparing the children from testifying. That is a hugely mitigating factor. The trauma that may have been caused by having to testify in court regarding that behaviour could have re-traumatized them once again.
The accused does show remorse and regret for his actions.
The accused has indicated, although with some hesitation, a willingness to take counselling and his willingness to embark on further rehabilitation, looking at present-day ways of dealing with anger management.
The accused was spanked as a child and that is what he learned.
This offence occurred in the context of excessive discipline and unreasonable use of force. He did lack parenting skills and was ill-equipped to care for a young girl with the special needs and past problems that she had.
The accused has a positive Pre-Sentence Report and although he does have a number of unresolved family issues, he does have the support of many friends, his wife's family, and is well regarded in the community.
Aggravating Factors
There are also a number of aggravating factors:
The seriousness of this offence. Violence of any kind against a young child is a serious offence. In this case we are dealing with more than a mere common assault. We are dealing with an assault causing bodily harm where approximately 60 to 70 per cent of her buttocks were black and blue.
Planned conduct. The accused said he spanked her on three separate occasions. The accused said he spanked his daughter as he was following through on what he said he would do if she misbehaved. He said it was more out of desperation of not knowing what to do anymore. In this case, though, I have not heard of any genuine misbehaviour by G.V.1. I have heard that she did not bring home a classmate's phone number. I have also heard at the sentencing hearing, and it has not been disputed, that G.V.1 was spanked or disciplined because she told her teacher she would have consequences if she did not bring home the number. But, as a result, her parents were spoken to by the school. It is accepted that indeed G.V.1 was, in part, spanked because of her telling of the teacher. It is hard to find how G.V.1's actions would have warranted discipline.
Position of trust. It is aggravating that this is an offence against a child under the age of 18 by a parent in a position of trust.
Bodily harm suffered. The bodily harm suffered is also aggravating.
Statutory Considerations
Without question, Section 718.01 requires the Court to give primary consideration to general deterrence and denunciation of this kind of conduct. As indicated in this matter, defence counsel are seeking a conditional discharge. Despite Section 718.01 that directs primary consideration be deterrence, a discharge is not precluded by law. The full range of sentencing options does remain available to this Court.
Sentencing is not easy, ever. And sentencing decisions do not take place using a mathematical formula; one cannot add up the aggravating versus the mitigating factors and come up with the answer. Sentencing requires a careful balancing of the various objectives and principles of sentence.
Specific Deterrence
On the facts of this case, including having considered the positive background of the offender, his willingness to attend counselling, guilty plea and remorse – I also consider the fact that he has been specifically deterred by this offence; he has relinquished his children; he has been humiliated in his community; the fact of being charged has been made known publicly to his friends, his colleagues, his spouse, his spouse's family, and undoubtedly that has caused him certain shame and humiliation.
For those reasons I conclude that a jail sentence is not required in order to meet the statutory requirements under Section 718.
Discharge Analysis
The issue, then, that I have considered is whether deterrence and A.V.'s rehabilitation is served by a period of probation with significant conditions or whether it is in the accused's interest and not contrary to the public interest to grant him a discharge.
In this case, as in most cases, a conditional discharge would be in the best interest of the accused. He has no previous record. He is a respected man in his community and a record may affect his ability to cross the border and accept certain contracts. As indicated, the more difficult issue, particularly in cases such as this where it is a serious offence, an offence of violence, is whether a discharge would be contrary to the public interest given, particularly, that we have an assault causing bodily harm against a seven-year-old girl by a person in a position of authority.
As indicated by counsel previously, public interest is not a legal term that has been strictly defined. Public interest, by definition, must include general deterrence as one factor for consideration. As indicated at paragraph 27 of Regina v. C.J.D., general deterrence is more important where the offence is premeditated or planned.
In our case, A.V.'s actions were, to some extent, planned, inasmuch as he said he would spank her if she misbehaved, so he did; inasmuch as he said if it was to happen again there would be 12 slaps.
Another factor in consideration of the public interest is the seriousness of the offence. The more serious the offence, the less likely would be the imposition of a discharge. In Regina v. C.J.D., Justice Lilles found that in the range of assault, the assault in his case fell at the low range as after one week there were no bruises to the buttocks observed. The bruises in that case were indeed transient and it was a common assault. The injuries in this case before me are more serious. In law, they do amount to assault causing bodily harm. They are beyond transient.
As indicated, public interest is broadly defined and I agree that I can include a number of different factors in determination of what is in the public interest. I can look at the impact the sentence may have on the family, on his ability to work. But I also need to look at the need to encourage the reporting of family abuse. I need to consider the incentives to engage in rehabilitative programming such as P.A.R.S. programming in domestic violence cases.
However, as aptly put by Justice Lilles at paragraph 36 of Regina v. C.J.D.:
"This is not to suggest that a discharge would be generally available in all cases involving assaults on children. Nevertheless, in a narrow range of circumstances, a discharge will be the appropriate sentence."
I have carefully reviewed the facts and circumstances of this case. I have considered the impact on those children. I have thought about the accused's background, and having considered all of those factors I find that in this case it would be contrary to the public interest to grant a discharge given the injuries suffered, given that the accused stated and planned to deliver the spanking for the misbehaviour, and given that the spanking was delivered in whole or in part as a response to reporting that abuse.
We want to encourage children to report such abuse. In this case G.V.1 was, in part, punished because she told her teacher and the accused told her next time she would get 12 slaps. These facts increase the seriousness of the offence, which is already an assault causing bodily harm, and increase the moral culpability of the accused.
For those reasons, I find it contrary to the public interest to grant you a conditional discharge.
Sentence Imposed
I find that a sentence that denounces the conduct, while, at the same time, assists you in your rehabilitation and acknowledges your lack of prior record and positive reputation is best achieved through a suspended sentence and a period of probation for 15 months.
If you could stand, sir?
As indicated, I have suspended the passing of sentence and I am placing you on probation for 15 months on the following terms and conditions:
You are to keep the peace and be of good behaviour;
You are to appear before the Court if and when required to do so;
You are to notify the Court or probation office in advance of any change of your name, your address, employment or occupation;
You will report in person today to a probation officer and thereafter as and when required;
You are not to communicate or associate directly or indirectly with G.V.1 or G.V.2 except if supervised by their parents and with the prior consent of the Children's Aid Society or other authorities;
You are not to attend within 500 metres of their place of residence, except if supervised by their parents and except with the written consent of the Children's Aid Society;
As directed by the probation officer, you will attend for any assessment, treatment and/or counselling as may be directed by them as it pertains to anger management and family counselling;
You will sign any and all releases as required by the probation office so that they can monitor your attendance and progress at any such counselling sessions;
You are to perform 50 hours of community service over the 15 months. This work is to commence within the next 60 days and will be completed at a rate of not less than five hours per month on consecutive months;
If deemed appropriate by the Children's Aid Society and if, and only with the consent of G.V.2 and G.V.1's parents, you are to write letters of apology to them. You indicated in the Pre-Sentence Report that you had not had that opportunity. I am going to give that opportunity but it will only be provided to the children if Dr. Palframan, the Children's Aid Society and their parents feel that it is appropriate that the letter of apology be provided to them. That letter would be delivered to the probation office and thereafter, once those preconditions are met, that letter may or may not be forwarded to them;
The Victim Fine Surcharge is waived.
Released: May 17, 2013
Madam Justice H. Perkins-McVey Ontario Court of Justice