Court File and Parties

Ontario Court of Justice

Date: 2016-05-18

Court File No.: Halton 14-3483

Between:

Her Majesty the Queen

— and —

J.B.

Before: Justice D.A. Harris

Heard on: February 11 & April 14, 2016

Reasons for Judgment released on: May 18, 2016

Counsel:

• Amanda Camara, for the Crown
• S. MacDonald, for the defendant J.B.

HARRIS J.:

INTRODUCTION

[1] J.B. pled guilty to assault causing bodily harm to his 3 year old son.

[2] Crown counsel had elected to proceed summarily.

[3] J.B. is before me today to be sentenced.

[4] Crown counsel suggested that I should sentence J.B. to imprisonment for 90 days, to be served intermittently so as to allow him to maintain his employment.

[5] Counsel for J.B. suggested that I grant him a conditional discharge, or alternatively, suspend sentence or further alternatively impose a conditional sentence of imprisonment.

[6] Both counsel agreed that I should place him on probation and make the following ancillary orders:

1. a DNA order; and
2. a firearms prohibition order pursuant to s. 110 of the Criminal Code.

[7] I find that a conditional sentence of imprisonment for six months followed by probation for two years is the appropriate sentence here.

[8] My reasons for this are set out under the following subject headings:

1. Fundamental purpose and principles of sentencing;
2. Conditional Discharge;
3. Conditional Sentence of Imprisonment;
4. The facts of this case;
5. The impact on the victim;
6. The background of J.B.;
7. Analysis;
8. Sentence.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[9] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[10] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[11] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[12] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[13] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence, especially the fault component, and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[14] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[15] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.

[16] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[17] Section 718.01 of the Criminal Code came into effect in 2005 and provides that "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".

[18] Section 718.2(a)(ii.1) and (iii) provide that evidence that an offender, in committing an offence, abused a person under the age of eighteen years or 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 and that the sentence should be increased to reflect that.

[19] The offence had a significant impact on the victim, considering his age and other personal circumstances, including his health and financial situation. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.

[20] I must also consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[21] I must also consider the impact of section 718.2(e) which provides that:

... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[22] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[23] The Supreme Court also declared that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and re-integration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

[24] The Supreme Court of Canada also expressly said in R. v. Proulx, that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

[25] Further:

there need not be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

[26] I can therefore impose a conditional sentence that is longer in duration than the jail term that I might otherwise have imposed.

[27] The maximum sentence for assault causing bodily harm is imprisonment for 18 months when the Crown proceeds summarily.

CONDITIONAL DISCHARGE

[28] Section 730(1) of the Criminal Code provides that:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[29] There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life. So I can grant J.B. a conditional discharge if I determine it to be in the best interests of the accused and not contrary to the public interest.

[30] In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:

1. Discharges are not limited to technical or trivial violations;
2. Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and
3. While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.

[31] In R. v. Wood, the Ontario Court of Appeal stated that:

It is our view that in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused.

[32] There are however cases in which the Ontario Court of Appeal has either upheld or substituted discharges in cases of assault causing bodily harm. I do note that all of those decisions involved specific and rather unique fact situations.

[33] I do note that all of the cases where discharges were granted predate amendments made to the Criminal Code in 2005, particularly sections 718.01 and 718.02 (ii.1) and 718.02 (iii) referred to by me previously. While those provisions may not preclude the granting of conditional discharges in cases of assault causing bodily harm to an offender's child, they certainly make such a sentence much more difficult to justify.

[34] The cases upholding discharges also predate the case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General). In that decision the Supreme Court of Canada set clear limits on the application of section 43 of the Criminal Code and, amongst other things, clearly stated that any action that causes actual bodily harm is unreasonable and not protected by section 43.

[35] I also note the comment of the Supreme Court of Canada in R. v. Proulx, supra that "a suspended sentence with probation is primarily a rehabilitative sentencing tool." That characterization applies even more to conditional discharges. Both forms of sentence are different from a conditional sentence of imprisonment which is intended to address both punitive and rehabilitative objectives.

[36] Counsel for J.B. did cite the one case where I had granted an accused a conditional discharge for such an offence. I simply point out that this case is very different from that one. Y.J.C. was in Canada on a work permit. Had I registered a conviction, he would have been deported to Korea. More importantly to me, his family, including his son would also have returned to Korea where they would be beyond the protection of a Canadian probation order. Finally, YJ.C. had spent 36 days in pre-sentence detention. In light of his limited English language skills and the nature of his offence, I was satisfied that he had served "hard time" and that this satisfied the need for denunciation and general deterrence in that case. None of those circumstances are present in the case of J.B.

CONDITIONAL SENTENCE OF IMPRISONMENT

[37] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[38] The Supreme Court of Canada subsequently stated in R. v. Proulx, supra that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[39] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[40] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;
2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. the court must impose a term of imprisonment of less than two years;
4. the safety of the community would not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[41] The first four criteria are prerequisites to any conditional sentence. These pre-requisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[42] In J.B.'s case, the first four prerequisite criteria have been satisfied.

[43] His offence was not excluded pursuant to section 742.1.

[44] Nor is it punishable by a minimum term of imprisonment.

[45] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.

[46] Finally, I find that J.B. serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence.

[47] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[48] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here, the impact that it had on its victim, and the background of J.B.

THE OFFENCE

[49] J.B. and his common-law partner S.D. resided together in Milton along with their three-year-old son J and their six-year-old daughter S.

[50] On November 24, 2014 S disclosed to a teacher at her school that "daddy had broken J's arm" and that he had "bent it backwards". As a result the Children's Aid Society was notified and a worker attended at the residence where J.B. reported that J had gotten into mom's makeup and had made a mess and that he was rough with J. He had picked J up by his arm and then placed him down hard. J was not using his left arm as much as usual that evening. Ice had been applied to it. There was no visible injury, however the family attended Milton Hospital for an examination and x-ray which confirmed that J had a non-displaced spiral fracture through the mid to distal humeral shaft of his left arm.

[51] J.B. provided the police with an inculpatory video statement in which he admitted to forcibly grabbing J by the arms after he found him in the bathroom with the makeup. During the grab there must have been an accompanying twist and following the incident he realized that J's arm was injured.

VICTIM IMPACT

[52] As I said earlier, J had a non-displaced spiral fracture through the mid to distal humeral shaft of his left arm.

BACKGROUND OF J.B.

[53] I have been provided with two reports from his family physician, Dr. A. Brown, as well as numerous reference letters from various family members and friends. These have provided me with the following information.

[54] J.B. is 29 years old.

[55] He was diagnosed at an early age with Asperger's syndrome (high functioning Autism Spectrum Disorder) and Attention Deficit Disorder.

[56] His parents separated when he was 5 and his mother remarried six years later.

[57] His early school years were stressful. He struggled academically "sometimes because he was bored and disorganized, and other times because he just didn't grasp the concept or tuned out due to his learning disorder". He was always big for his age and people expected him to be older and more mature than he actually was.

[58] He completed high school and attended Sheridan College but did not complete the program there.

[59] He got a job, left home and moved in with his current partner S.D. They had their first child, S when J.B. was 20 years old and J was born three years later.

[60] S has also been diagnosed as suffering from Autism Spectrum Disorder but it also appears that she has clear signs of a developing psychosis. These signs include auditory and visual hallucinations and occasional distorted reality. She may be becoming schizophrenic.

[61] J was born one month premature, lactose intolerant, and was tongue-tied. He had to have surgery to correct his tongue. He has ongoing speech and behavioural issues. At one of his daycare placements, he was required to wear a helmet because he was banging his head and throwing himself on the floor.

[62] As J.B.'s mother understated the situation, "They are both very high needs children".

[63] J.B. was, and is, the sole bread-winner for the family.

[64] He was also actively involved with the children, dressing and feeding them, transporting them to school and daycare and volunteering at the school so that S could participate in extracurricular activities there.

[65] After being charged in November 2014, he was not able to see his children, or even talk to them over the telephone, for 8 months. This included Christmas, Easter and birthdays. In June 2015, he was allowed to see the children every other weekend under CAS supervision.

[66] He is still big for his age (6 feet 5 inches tall, weight not provided) and he may not realize his strength.

[67] All of the referees expressed surprise at this offence and describe it as being out of character for J.B.

[68] Dr. Brown wrote:

While [J.B.] remains significantly stressed because of the imposed separation from his children and his wife, he has managed his mood very effectively through a combination of medication management and individual psychotherapy. He has continued to focus upon ensuring that his anger is under good control and that he is exhibiting no violence either verbal, emotional or physical towards anyone. He certainly has demonstrated extreme remorse over any harm he may have cause his son [J]. He has a markedly increased understanding of his own size and strength and the need to control this in all situations. Certainly he's been committed to do whatever he can to comply with any requests from the Children's Aid Society. He's accepted full responsibility.

[69] J.B. wrote the following to the Court:

I accept full responsibility for what has happened. It was never my intention to cause such harm not only to my son but to my entire family. This ordeal has been a strain on everyone involved, and the time we've lost can never be recovered, a fact I will always regret. I love my family and from the moment I've been gone, I've been waiting, hoping for the day when I could go home and just be with them again. This should never have transpired the way it has. I should never have acted the way I did and if given the chance I would never do it again.

ANALYSIS

[70] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwise decent, law-abiding persons commit very serious crimes in circumstances that justifiably attract understanding and empathy.

[71] The most aggravating factor here is that this was a horrific offence.

[72] It was not an accident. While he did not intend to hurt his son, J.B. intentionally applied physical force to the boy.

[73] It was not a matter of J.B. disciplining his son. J.B. quite properly did not attempt to justify his actions under section 43 of the Criminal Code.

[74] For that section to apply, "the person applying the force must have intended it to be for educative or corrective purposes. Section 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration". I would certainly characterize J.B.'s actions as animated by frustration.

[75] Second, the child must be "capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction". Three year old J, with all of his behavioural issues certainly did not possess such capacity.

[76] Finally, section 43 can be invoked "only in cases of non-consensual application of force that results neither in harm nor in the prospect of bodily harm". Serious bodily harm was caused in this case.

[77] Fathers are supposed to protect their young defenceless children from such serious injury. They are not supposed to be the one causing such harm.

[78] J.B. clearly understands that.

[79] He entered a guilty plea. That and his comments to me (and to everyone else as well) indicate that he has accepted full responsibility for his actions and that he feels remorse.

[80] He had no previous record. Other than this offence, I have no reason to believe that he is anything other than a good man.

[81] He clearly loves his children. He hopes that they will succeed in life and he has done much to ensure that they have as good a chance as possible at achieving such success.

[82] Both children are "high needs" children who could easily stress out any parent. This fact is exacerbated by the fact that J.B. is not just any parent. He too could be described as "high needs".

[83] He has clearly learned a great deal from what happened here and I think it is highly unlikely that he will ever be back before the court again. He has already taken steps to ensure this.

[84] Accordingly, I am not concerned about specific deterrence.

[85] I am however gravely concerned about the need for general deterrence and denunciation.

[86] I find that a conditional discharge and even a suspended sentence are insufficient to make it clear to everyone that we as a society will not tolerate any parent acting in such a way as to inflict such serious personal injury upon their young child.

[87] Accordingly, I find that a conditional discharge would be contrary to the public interest in this case.

[88] I also find that sending J.B. to jail would be contrary to the public interest.

[89] The principles of general deterrence and denunciation can be satisfied by a conditional sentence of imprisonment for six months, followed by probation for two years. That sentence will also address the principles of rehabilitation and restorative justice.

SENTENCE

[90] For all of the above reasons, I sentence J.B. to a conditional sentence of imprisonment for six months to be served in the community. This will be followed by probation for two years.

[91] The terms of the conditional sentence of imprisonment will require that J.B.:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. report in person to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor;

4. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

5. remain within the province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor;

6. cooperate with his supervisor. He must sign any releases necessary to permit the supervisor to monitor his compliance and he must provide proof of compliance with any condition of this order to his supervisor on request;

7. live at 366 Woodlawn Crescent, Milton, Ontario, L9T 4T5, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

8. a home confinement condition will be in effect for the first three months of the conditional sentence;

9. during that time he will remain in his residence at all times except:

   • a) between 1 pm and 5 pm on Saturdays in order to acquire the necessities of life,
   • b) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling),
   • c) for going directly to and from, or being at school, employment, court attendance, religious services and legal or medical or dental appointments, or any assessment, treatment or counselling sessions, or exercising access to your children
   • d) he will confirm his schedule in advance with his supervisor setting out the times for these activities
   • e) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with him during these times.

10. During the period of home confinement, he must present himself at his doorway upon the request of his supervisor or a peace officer for the purpose of verifying his compliance with his home confinement condition.

11. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with his son J. except with the prior approval of the Children's Aid Society;

12. not be within 20 metres of any place where he knows his son J to live, work, go to school, frequent, or any place he knows him to be except with the prior approval of the Children's Aid Society;

13. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor, for anger management, psychological or psychiatric or any other program directed by the supervisor.

[92] The terms of the probation will require that J.B.:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of completing his conditional sentence of imprisonment and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with his son J. except with the prior approval of the Children's Aid Society;

7. not be within 20 metres of any place where he knows his son J to live, work, go to school, frequent, or any place he knows him to be except with the prior approval of the Children's Aid Society;

8. attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the supervisor, and complete them to the satisfaction of the supervisor, for anger management, psychological or psychiatric or any other program directed by the probation officer.

[93] I also make the following two ancillary orders.

[94] This is a primary designated offence and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from J.B. of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis. That will be done today.

[95] Finally, pursuant to section 110 of the Criminal Code, for the next five years J.B. is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[96] J.B. will have 90 days to pay the victim fine surcharge.

Released: May 18, 2016

Signed: "Justice D.A. Harris"