WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2015-05-20

Court File No.: Brampton 20039/11

Parties

Between:

The Children's Aid Society of the Region of Peel, Applicant,

— AND —

M.H., Respondent

and

S.H., Respondent

Before the Court

Before: Justice J.W. Bovard

In Chambers filed on: April 28, 2015

Reasons for Ruling released on: May 20, 2015

Counsel

L. Shaw — counsel for the applicant Society

M. Osadet — counsel for the respondents

Decision

BOVARD J.:

[1] This is a ruling on the Society's 14B motion [1] in which they ask for an order that they be allowed to introduce evidence, by way of a further 14B motion, of the respondents' conviction and sentencing for the manslaughter of one of their children.

[2] Their prayer for relief is as follows:

1. An order that the following issues be dealt with in chambers by 14B motion:

   a. As per the decision of The Honourable Mr. Justice Bovard dated April 7, 2015, an order reopening the evidence of the trial in this matter to allow evidence regarding the conviction which includes the sentencing of M.H. and S.H.

   b. If the court takes the position that the sentence is not part of the criminal conviction, in the alternative to (a), an order granting leave to adduce further evidence of the criminal sentence in addition to the criminal conviction of manslaughter of M.H. and S.H.

[3] In support of its 14B motion the Society filed the affidavit of Denisa Simpson, the child protection worker assigned to this case. She states that she is aware that on April 10, 2015 both of the respondents received a custodial sentence of 24 months. She says that the Society believes that evidence of the conviction as well as of the sentence is relevant to the determination regarding the need for protection, as well as the final disposition.

[4] She states that counsel for the Society advised her that the evidence "can be submitted in writing by the court considering a copy of the Indictment as well as the court's endorsement, with specific reference to the endorsements of October 8, 2014 and April 10, 2015."

[5] This sentence is somewhat awkward, but I take its meaning to be that the Society believes that it could adduce the evidence of the respondents' convictions and sentences by submitting the indictment and the sentencing court's endorsements, both of which are exhibits to Ms. Simpson's affidavit.

[6] Ms. Simpson states that the Society's position is that it does not wish to attend before the court to adduce this evidence because it "believes that the evidence contained in this affidavit is factual and does not require further oral submissions or court appearances".

Distinction Between Conviction and Sentencing

[7] The Society did not file any other evidence on this motion. Nor did it file any authority to support the notion that the sentence is "part of the criminal conviction". I find that it is not. Although the sentencing process is part of the trial in the sense that it is "merely a phase of the trial process" and "not a new proceeding separate from the trial [2], it is a distinct and different process from that which is used to determine whether or not the accused should be convicted.

[8] I have not been able to find any direct authority on this point. However, I find support for this holding in the organizational structure of the Criminal Code. The Code deals with trial and sentencing in different parts of the Code: parts 19 and 20 deal with trials, part 23 deals with sentencing.

[9] This structure is reflected in Criminal Procedure in Canada, Penney, Rondinelli, Stribopoulos (2011). The authors devote part 4 of their book to "The Trial". In this part, they discuss all of the procedures that are invoked to determine whether or not an accused is found guilty or not guilty.

[10] Part 5 is titled "Post-Trial Procedures". Sentencing is contained in this part. In the introduction to this part, the authors state "sentencing remains a highly individualized process and counsel must be prepared to deal with factors, extrinsic to the offense".

[11] In Sentencing, eighth edition, [3] the authors state at the beginning of chapter 3 that:

If the accused is found guilty, either after a plea or after a trial, a sentencing hearing must be held to ascertain the facts on the basis of which sentence will be imposed so that the appropriate sentence may be selected. This hearing is to be held "as soon as practicable after an offender has been found guilty".

Prior Ruling and Reopening of Trial

[12] On April 7, 2015, I granted the Society's 14B motion in which they requested to reopen this Crown wardship trial for the purpose of adducing evidence of the respondents' conviction for the manslaughter of one of their children.

[13] In paragraph 60 of my decision I stated that:

After considering all of the evidence, the law and counsels' submissions, I allow the Society's motion to reopen the case solely to introduce evidence of the respondents' convictions for the manslaughter of their child, M. (Emphasis added)

Position of the Respondents

[14] Ms. Osadet, on behalf of the respondents, relies on paragraph 71 of my ruling of April 7, 2015 to argue that the parties should be permitted to attend court as ordered. In paragraph 71 I stated:

The parties shall consult with the trial coordinators to schedule a date for the reopening of the trial solely to introduce evidence of the respondents' manslaughter convictions. I leave it to the parties to estimate how much time they will need and advise the trial coordinator accordingly.

[15] Ms. Osadet submits that the parties should be able to make oral argument regarding the weight to be attached to the respondents' convictions for manslaughter as they affect the factor of past parenting.

Procedural History

[16] In order to address Ms. Osadet's argument that according to my ruling I contemplated an oral hearing it is important to explain what happened after I issued the ruling.

[17] I issued my ruling on April 7, 2015. Eight days later, on April 15, 2015, while I was sitting in court with a CAS list I saw Ms. Shaw and asked her if she had heard from Ms. Osadet regarding setting a court date. She told me that she had not. I was concerned that the trial was dragging on. Since the evidence that the Society wanted to adduce was simply a certified copy of the indictment indicating the fact that the respondents were convicted, in order to save time I told her that in the circumstances she could adduce the evidence by way of a 14B motion.

[18] The Society served Ms. Osadet with its 14B motion on April 21, 2015. [4] It filed the motion on April 22, 2015. Subrule 14(10.1) provides that a person who is served with a 14B motion has four days to serve and file a response. Otherwise, "the motion shall be dealt with by the court as an unopposed motion".

[19] On April 27, 2015, five days after the Society served her with the motion, Ms. Osadet sent an email to my assistant, Ms. Findlay, in which she stated that "The motion record was delivered to my office on Wednesday, April 22, 2015". She requested until May 4, 2015 to respond. On April 28, 2015, I instructed Ms. Findlay to advise Ms. Osadet and Ms. Shaw, counsel for the Society, that I would grant her until May 4, 2015 to respond.

[20] Ms. Osadet served her response on the Society on May 5, 2015 [5]. She filed it on the same day.

[21] At 9:22 a.m. on May 6, 2015, Ms. Osadet sent an email to Ms. Findlay and to Ms. Shaw in which she stated "It has come to my attention that the support affidavit to our responding material. (sic) I will be delivering this to CAS this afternoon and file in the court this afternoon". [6]

[22] At 7:44 p.m. on May 6, 2015, Ms. Shaw sent an email to Ms. Findlay and to Ms. Osadet stating that she had not received anything more from Ms. Osadet.

[23] The next day, May 7, 2015 at 12:00 p.m., Ms. Osadet sent an email to Ms. Findlay and to Ms. Shaw stating "That is correct – nothing was sent, I am waiting on the excerpts from a transcript. Will send it as soon as possible". Ms. Osadet did not indicate to which transcript or to which excerpts she was referring.

[24] After this, no one has heard from Ms. Osadet. This results in there being no affidavit to support Ms. Osadet's response to the Society's motion.

Disposition

[25] It is now, May 20, 2015, thirteen days after Ms. Osadet's last communication with the court and (to best of my knowledge) the Society. The court is quite concerned that this matter is taking so long.

[26] But the court is also concerned with preserving the integrity of this 12 day Crown wardship trial. The court does not want it to appear that it did not allow the respondents an opportunity to be heard with regard to the issue of the introduction of evidence of their sentences and to make submissions on how the court should consider it in its trial judgment if it is admitted into evidence.

[27] When the court ruled that the trial could be reopened for the Society to adduce new evidence, it was to adduce evidence of the respondents' conviction. The court's ruling was that it allowed "the Society's motion to reopen the case solely to introduce evidence of the respondents' convictions for the manslaughter of their child, M." (para. 60). In its 14B motion before the court today the Society asks leave to introduce evidence of the respondents' sentencing as well. This adds a new dimension to the situation.

[28] Therefore, considering all of the above circumstances, the court dismisses the Society's motion without prejudice to its bringing an oral motion in court with regard to the introduction of the evidence of the respondents' sentencing.

[29] Counsel shall consult each other and pick a court date starting at 9:00 a.m. Ms. Shaw shall call my assistant, Ms. Laurie Findlay, 905-470-0456 ex. 5153 to advise her of the date.

[30] On the day selected the court will reopen the trial so that the Society may introduce evidence of the respondents' conviction. The court decided in its previous ruling mentioned above, that it would reopen the case so that the Society can adduce evidence of the respondents' conviction. This is no longer an issue. All that is required now is for the Society to introduce the evidence.

[31] On the same day, unless counsel agree with regard to the introduction of evidence of the respondents' sentencing, the Society may make an oral motion to introduce evidence of the respondents' sentencing. The court will not require the Society to bring a motion in writing because the parties and the court know what the issue is and know all of the background that led up to this point. This ruling will serve as notice to the respondents that this will occur.

[32] Considering that even after having been given an extension the respondents have yet to file all of their materials in response to the Society's 14B motion, which is the subject of this ruling, the court feels that to require the serving and filing of more documentation is, in these circumstances, superfluous and risks the prolongation of the case unduly.

[33] On the next court appearance counsel may make submissions with regard to the introduction of the evidence of the sentencing and with regard to the weight that the court should put on the evidence of conviction and of sentence, if the latter is admitted.

[34] If the respondents wish to attend the court hearing, it is Ms. Osadet's responsibility to obtain a judge's order to bring them to court.

[35] I am directing my assistant to send a copy of this ruling to the parties today.

Released: May 20, 2015

Justice J.W. Bovard

Footnotes

[1] The Society filed their motion on April 22, 2015. It is contained in their Motion Brief, volume #2.

[2] Sentencing, eighth edition, LexisNexis (2012), page 56

[3] LexisNexis (2012), page 55

[4] See affidavit of service of Paula Simms, tab 1, Motion Brief #2

[5] See affidavit of service of Jean Wells, tab 11, vol. 6, continuing record

[6] Everyone agrees that this refers to the fact that Ms. Osadet did not serve or file a supporting affidavit with her response.