Court File and Parties
Date: April 9, 2018
Information No.: 16-197
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
F.B.
Before: Justice S. Bondy
Counsel:
- J. Magri, for the Crown
- P. Brown, for the Accused
Ruling Delivered Orally: March 28, 2018
Reasons for Judgment
BONDY J.:
Introduction
[1] After plea, the defendant was found guilty of committing an assault on his son K.B., with a weapon, namely a wire cord, on or about November 30, 2015.
[2] This is the sentencing stage of these proceedings. The issue is what the appropriate sentence in this matter is. The Crown seeks a 30 day period of custody with an order of probation to follow together with ancillary orders. The defence seeks a conditional discharge with a period of probation to follow. No issue is taken with the ancillary orders sought.
The Facts of the Offender
[3] Briefly, the facts on the plea are that the defendant was the father of four (4) children at the time of these events. K.B. was born in 2010, followed by Q.B. There are two other younger children.
[4] When K.B. attended at school on the 2nd of December, 2015, injuries were observed on his body. He told a Children's Aid Society worker that he was "beat" in the past and "when he wasn't eating his bread and wasn't listening, Dad stabbed and poked him with a sharp, silver thing." A further interview with K.B.'s younger brother, Q.B., revealed that "K.B. was taking too long to eat his toast, Dad went into his room and got a black thing and hit K.B. with it at least 5 times." When Officers attended at K.B.'s parents' apartment, his mother told authorities that her partner, the children's father, did most of the disciplining and on occasion would hit K.B. with a cord. The cord was eventually located. It was a black micro-USB charger cord.
[5] Immediately on arrest, K.B.'s father, the defendant, expressed sorrow for the incident, expressed responsibility for the incident, and agreed it was he, not his partner or Q.B. that had struck K.B.
[6] Photographs taken of K.B. at the time of his father's arrest show several welts across his back, chest and arms. There are no open wounds. There is a half-moon laceration on K.B.'s arm where the USB charger was likely applied and broke the skin. The small laceration is scabbed over. It is impossible from just examining the photographs to ascertain how much bruising if any was incurred. I have no medical documentation related to the welts, their age or medical details etc. To my knowledge there was no medical attention sought or obtained for K.B. I have no details as to whether K.B. complained about soreness or complained about any bruising. K.B. is dark complected, his mother is Afro-Canadian and his father is Jamaican. K.B. is small in stature, looks well fed, well-nourished and is appropriately attired in the photographs. I have no other details relating to the incident in question.
[7] The defendant may have commonly used corporal punishment when disciplining K.B., but I have little detail about these circumstances. I hesitate to find that K.B.'s use of the word "beating" suggests he was in fact beat on a regular basis. I also do not know whether the defendant's own traumatic upbringing, parenting and cultural norms encouraged the use of corporal punishment. K.B.'s mother denied any assaultive behaviour towards her by the defendant. Their relationship is described as stable and loving.
The Background of the Offender
Immigration Consequences
[8] The defendant is not a Canadian citizen, not a permanent resident, not a protected person in Canada as that term is defined nor a Status Indian. His status is that of a foreign national. He is a citizen of Jamaica, but has not resided there after one year of age, when he travelled with a relative to Canada as a temporary resident. Eventually, the defendant's mother joined him in Canada and applied for permanent resident status in 2006, but this was denied. He was listed as a dependent on her application. On May 26, 2008 her application was denied. He has no permanent resident status in Canada and although he was authorized to originally enter Canada, he is now deemed "inadmissible" as that term is defined in the Immigration and Refugee Protection Act (IRPA), as a result of his overstay under s. 44(1) of the Act. Before me on this hearing I have considered the viva voce testimony and opinion evidence from Ms. Mary Jane Campigotto, an immigration lawyer practicing in Windsor. That testimony is not in dispute. At 18 years of age, the defendant learned from his mother that he was not a Canadian citizen and prior to that had no idea of his tenuous immigration status. His mother is recently deceased and she returned to Jamaica without him several years ago. Most of his family reside in Canada. According to Ms. Campigotto, for the defendant to continue residing in Canada and not be subject to removal and immediate deportation, his only recourse is an application for consideration on humanitarian and compassionate grounds under s. 25(1) of IRPA taking into account the best interests of his children.
[9] Ms. Campigotto opined that as a foreign national, if the defendant were convicted of an indictable offence punishable by a maximum term of imprisonment of at least 10 years (and she opined that assault with a weapon where the Crown has proceeded by indictment falls into that category), this would result in a finding of "serious criminality" pursuant to s. 36(a)(a) of IRPA, which in turn would increase the likelihood of the defendant's immediate removal from Canada and would negatively impact his humanitarian and compassionate grounds application. If the defendant is convicted of this offence, he would be deported to Jamaica and no application for his return can be considered for at least 5 years. For these reasons the defence seeks a conditional discharge in connection with this offence citing the serious immigration consequences that will flow from this sentencing should a conviction be entered.
[10] M.B., the defendant's partner and the mother of his four children at the time of this hearing, is a Canadian citizen. She testified that the defendant's mother died in Jamaica in August of 2015, and she and the defendant were not completely aware of his immigration status until after his mother's death. She testified that his mother had all the information, they made previous attempts to sort out what the problem was, but she described themselves as running around in circles trying to ascertain what the information was and who to contact and never really understanding what was going on until the defendant was arrested in connection with these charges in December of 2015.
[11] M.B. stated that in the event the defendant was removed from and deported from Canada she would be devastated as "that's four kids that don't have a Dad anymore," and she would have no means to travel or stay there. Thereafter, she would be on her own with the children in Canada. She described the defendant as having a strong bond with the oldest two children, including K.B. She agreed that the defendant took his mother's death very hard "as his mom was his mom, his dad, his best friend, and leading up to her death, we didn't know how serious it was" and she described him as "withdrawing" following her death. She commented that the defendant's access visits after the assault are positive, starting with supervised access and now moving to her monitoring the visits. She is in full support of the defendant being involved with his children and re-integration of her family.
Post Offence Rehabilitation
[12] Following his arrest for this offence, the defendant's efforts at rehabilitation are nothing short of remarkable and commendable. In this respect, I have considered the documentary findings filed on this hearing and the viva voce testimony of Mr. Mike Sultana, formerly the clinical coordinator of the Hiatus House Fresh Start program and Mr. David Sandor, counsel for the children through the Office of the Children's Lawyer in connection with child protection proceedings that were commenced following the defendant's arrest in connection with these charges.
[13] The evidence reveals the following: The defendant has completed anger management courses through the John Howard Society and Hiatus House. He completed the Triple P Parenting program, the Ten Steps to Positive Discipline Course and will be eligible for a "Parenting traumatized children" program. The defendant has attended scheduled supervised access visits with his children including implementing proactive parenting techniques that he learned thru the Triple P parenting course. He has engaged in counselling with the Windsor-Essex Community Centre, counselling with the Canadian Mental Health Association for mood and anxiety disorders, followed up with his CMHA worker for anxiety and depression and worked cooperatively with a psychiatrist who made the diagnosis of depression and anxiety and ongoing visits with his medical doctor. He also attends for bereavement counselling related to his upset following his mother's death.
[14] As for his relationship with Children's Aid Society staff, the evidence reveals that he has been cooperative and compliant with the Society and met consistently with the worker and signed releases so that they can monitor his progress with other service providers.
[15] Mr. Sultana described that the defendant completed three separate cycles of the Fresh Start program. This is largely an anger management group therapy project. His attendance has been voluntary and he was described as participating actively and wanting to continue his involvement even after court matters were resolved. At first Mr. Sultana described the defendant as having some ambivalence about his attendance as the Children's Aid was monitoring his attendance but Mr. Sultana saw this ambivalence as a natural and healthy reaction by him. Overall however, Mr. Sultana cautions that on average his experience indicates that participation in Fresh Start requires attendance for a year and half to two years to see significant changes in relationship issues.
[16] Mr. David Sandor took the unusual step of testifying on the defendant's sentencing hearing. He said he was appointed to represent the Office of the Children's Lawyer in child protection proceedings due to allegations of inappropriate physical discipline by the defendant. He repeated that the defendant's access has been increased so that with M.B.'s supervision he can now visit with them at her home and in the community. He was familiar with all the courses and programs attended to by the father and he advised that subject to more counselling for the mother and children the expectation is that the family will, at some point, resume a normalized home environment with their father playing a supportive role.
[17] Mr. Sandor in cross-examination said that "it was not his job to whitewash, even as OCL, what the facts [were] and the fact situation," and acknowledged there were significant concerns at the start of his involvement, that there would continue to be ongoing supervision by the Children's Aid, even after the current supervision order by the Children's Aid, as despite the children's preference for the family to be re-united, the Society and he want to continue to assess the children's interaction with their parents, the stresses on the family as a whole, the father's follow up with depression and anger counselling and the loss of his mother, the children's grandmother and the resolution of these criminal proceedings. Overall, Mr. Sandor was most supportive of the defendant and the ultimate plan of re-integrating him back into the family unit.
The Pre-Sentence Report Findings
[18] There were two reports prepared in connection with this hearing. The first was prepared sometime around August 15, 2016 and an update was prepared for September 18, 2017. The defendant is in his mid-20's and has never met his biological father and has no relationship with him. His childhood is described as traumatic as his step-father was physically abusive and he led a transient lifestyle as a child, eventually moving in with M.B., his partner and her family when he was 16 years of age. He describes his relationship with his mother as "mixed;" at times very close and other times strained. At the time of her death, he was unable to see or speak with her before she passed away and he was not able to attend her funeral. A step-sister was removed from his childhood home by the Children's Aid and they are not close. He is very close to M.B.'s family but has little contact with his own family members.
[19] As a child the defendant was reportedly bullied in school and did not earn his high school diploma. He would like to return to school and obtain meaningful employment, but immigration issues have prohibited this. He is not eligible to receive social assistance either. By 2016, he was being supported by his brother in law and his girlfriend, but by September 2017 this had changed as they returned to reside in Toronto. He is presently unemployed and living with a friend with no real source of income due to his immigration status. He has learned a few skills in the construction trade and has worked in a convenience store and beauty salon, but after 2010, he has been the primary caregiver for the children as a stay-at-home dad caring for the family home, cooking meals and caring for the children while his wife worked to support the family. As a result the defendant has a limited education and employment history.
[20] There are no alcohol or substance abuse issues or gambling behaviours for the defendant. This was confirmed with the CAS worker. His relationship with M.B. is described as healthy and mutually supportive. The defendant is described by M.B., the children's mother, as "an amazing man, an amazing father" and she was entirely confident he would complete the programming and expectations placed on him by the CAS and the courts. Following the defendant's arrest for this offence, the children were apprehended and taken into care by the Children's Aid Society. His access to his children has steadily increased since that time commencing with supervised access and now "monitored" by the children's mother. Reports from the Children's Aid Society state his visits have been positive and ever increasing in frequency and duration.
[21] One issue identified in the pre-sentence findings is that the defendant suffers from depression and anxiety issues. He was prescribed medications and receives them through samples, as he is not eligible for any drug coverage. He expressed that the medications were helping him and his commitment to counselling has been positive. The defendant is described as having a positive support system comprised of his wife's family and friends and mental health programs and professionals. Overall the defendant expresses the willingness to comply with any sentence imposed by the Court and over time his attitude towards his assaultive behavior has significantly changed as he "realizes the importance of admitting what happened and accepting the consequences." He expresses remorse for his offending behaviour and its impact on his family.
[22] Overall, I would describe his report findings as positive, encouraging and exemplary. Although the defendant suffers from anger, parenting, mental health including bereavement and financial issues, he has completed multiple anger, domestic violence and parenting programs through the Children's Aid and the Canadian Mental Health Association and has consistently been taking medication to address his feelings of anxiety and depression. According to the author of his pre-sentence report, he has made appropriate efforts to address areas of concern since the time of his arrest.
The Law
[23] In sentencing physical child abuse incidents there are two distinct types of cases that are identified:
a. The application of force with, if not the intention, the expectation of causing injury or, an indifference as to whether injuries will result; and
b. The application of force where a parent or other custodian of a child is immature and is unskilled in matters of child care, and acting out of emotional upset, frustration or impatience, and does not fully appreciate the serious injuries which might result.
[24] Jurisprudence provides that where there is a high degree of culpability the Court in most cases will impose a severe sentence. In the second situation described above, while punishment is warranted, a punishment, where such is warranted, will not ordinarily be severe and will usually be followed by a period of probation, a condition of which the abuser would receive training and counselling to the end that further acts of abuse will be avoided. See R. v. Marks, [1994] N.J. No. 241 (Nfld. C.A.). Generally, however, principles relating to general deterrence and periods of incarceration are often imposed in child abuse cases. See R. v. Grant, [1986] B.C.J. No. 384 (C.A.).
[25] In addition to these pronouncements, the Supreme Court has provided guidance on the issue of sentencing overall. The Court has repeatedly emphasized the role of proportionality as a fundamental principle of sentencing, the principle of parity and sentence individualization. Proportionality reflects the gravity of the offence and the moral blameworthiness of an offender. In the end proportionality then achieves a just and fit sentence which is the objective of all sentencing. See R. v. Ipeelee, 2012 SCC 13. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, the Court expressed that "general ranges of sentences … are guidelines rather than hard and fast rules and a sentence can be ordered outside of the range as long as it is in accordance with the principles and objectives of sentencing." In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 at paragraph 11, the Supreme Court indicated that "when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offender, the most suitable one may be the one that better contributes to the offender's rehabilitation."
[26] Sentencing is also governed by the statutory provisions found in Part XXIII of the Criminal Code.
[27] Section 718 of the Criminal Code states that the fundamental purpose of sentencing "is to contribute… to respect for the law and the maintenance of a just, peaceful and safe society." This is to be achieved by imposing sentences which have, among other objectives, the objectives of:
a. Separating offenders from society;
b. Denouncing unlawful conduct;
c. General and specific deterrence;
d. Rehabilitation; and
e. Promoting a sense of responsibility in offenders, and acknowledgement of harm done to victims and the community.
[28] Section 718.2(b) of the Criminal Code states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances."
[29] Section 718.1 of the Criminal Code states that any sentence imposed must be "proportionate to the gravity of the offence and the degree of responsibility of the offender." Proportionality then is central to the sentencing process. See Nasogaluak.
[30] Section 718.2(a) of the Criminal Code indicates that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender."
[31] Section 718.2(d) states "that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances" and section 718.2(e) states 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 the aboriginal offender."
[32] Section 718.01 provides that for offences where the victim is under the age of 18 years, the sentencing principles of deterrence and denunciation are to be given priority, however, "though the discretion of a sentencing judge in applying all the factors set out in Part XXIII of the Code has been circumscribed" by this provision this does not mean that every case in which this provision applies a period of imprisonment must be imposed or that resort to the Criminal Code's discharge provision can never occur (see R. v. Allen, 2012 BCCA 377 at paragraph 51).
[33] The Court's authority to grant an offender a discharge is found in s. 730(1) of the Criminal Code. This provision allows the Court to refrain from entering a conviction, despite proof that an offence has been committed, if satisfied that two prerequisites apply: The Court must be satisfied that a discharge is in the (1) best interest of the offender; and (2) is not contrary to the public interest. In R. v. Elsharawy, 119 C.C.C. (3d) 565 (N.L.C.A.) the Court found that the first factor "in the best interests of the offender" presupposes the person is of good character, usually without previous conviction or discharge and the second factor "involves the consideration of the principle of general deterrence with attention being paid to the gravity of the offence, its incidence in the community, public attitudes towards it and public confidence in the effective enforcement of the criminal law." Also see R. v. Fallofield, 13 C.C.C. (2d) 450 (B.C.C.A.).
Analysis
[34] The defence seeks a conditional discharge in these circumstances relying on decisions such as R. v. J.B., [2015] N.J. No. 312 (Nfld. & Labrador Prov. Crt.); R. v. Y.J.C., [2012] O.J. No. 812 (O.C.J.); R. v. D.W., [2014] B.C.J. No. 822 (B.C. Prov. Ct.); R. v. Broderick, [2014] O.J. No. 3905 (O.C.J.) for the proposition that conditional discharges under s. 730 of the Criminal Code have been granted in child abuse cases and with first-time offenders. The defence further relies on the proposition that a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account provided the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. Consequences, however, should not be allowed to dominate the sentencing exercise or skew the process in favour of or against deportation. (See Pham; R. v. Alzahrani, [2015] O.J. No. 174 (Ont. S.C.)).
[35] In Y.J.C., a pre-Pham decision of Justice Harris of the Ontario Court of Justice, the accused father was a strict disciplinarian who expected his children to adhere to a rigorous study regime. When the Accused felt his son was not studying hard enough, he took a hockey stick to his son's buttocks and thighs and struck him with sufficient force that he left a number of large, ugly bruises. Notwithstanding immigration consequences that would likely result in the accused's inadmissibility and deportation if a conviction was registered, the Court found that the father's guilty plea, no previous record, his love for his child(ren), his understanding that he could not continue disciplining his children in the same fashion, cultural considerations (as to use of corporal punishment) and his pre-sentence custody of 36 days warranted imposition of a conditional discharge. The Court was satisfied that granting the accused a discharge on probation terms would be in the accused's best interests and not contrary to the public interest where the discharge would provide the best protection for the Accused's son and to a lesser extent, the impact that deportation would have on his children. He did not find that the circumstances of the offence were so serious in the public interest to reject the discharge request.
[36] In J.B., the accused assaulted his six year old child, shortly following the death of his infant child, when he grabbed her with both hands by the child's upper arms, lifted her off the floor four feet and walked approximately nine feet with her in the air, slamming her into the wall. The Court considered the offender as falling into the second category of child abuse offenders mentioned in Marks, considered his moral culpability high, noted that the accused had no criminal record, had plead guilty, maintained that emphasis should be placed on the accused's rehabilitation and restraint, the mitigating circumstances of the infant child's recent death and the fact that there was no pattern of abuse demonstrated.
[37] In D.W., the accused was a high ranking police officer with no record who used slaps to the head and strikes with a belt to his daughter's buttocks to discipline his 11 year old daughter. Corporal punishment had been used in this fashion on repeated occasions. Bruising was noted. The Court imposed a conditional discharge as the accused was considered a low risk to re-offend; the offence found the assault at the low end of the seriousness spectrum, the accused made an early guilty plea, was remorseful and took significant steps to learn proper parenting. The court considered the aggravating circumstances of the breach of trust (i.e. the accused was the victim's father) and the accused's use of a weapon.
[38] In Broderick, the Court granted a conditional discharge in circumstances where the accused struck his 9 year old son with his open hand, twice on the buttocks and once on the back of the head and used a leather strap to strike him on the buttocks 5 times. The strikes caused welts, bruising and marks on the buttocks. The accused readily admitted guilt, had a previous criminal record including a conviction for spousal assault, was an aboriginal offender, the offence was described as a "beating" and not a "spanking," was a responsible and caring father in other respects and immediately sought outside help. The Court considered this the rarest of cases and granted a conditional discharge.
[39] Summing up all of these cases, some of the factors include whether the accused is a first time offender with good character status, an accused's supportive family, positive pre-sentence report findings, a guilty plea, one's prospect for rehabilitation, the nature and degree of seriousness of the offence, one's acceptance of responsibility and one's remorse, attempts at counselling, the likelihood of recidivism, prospects for rehabilitation and time served on pre-sentence custody.
[40] Conversely, the Crown argues that the public interest in these circumstances, notwithstanding the immigration consequences for the children and family, are such that the second part of the test for a conditional discharge are not met in these circumstances. Specifically, the Crown maintains that deterrence and denunciation are still paramount sentencing objectives and that it is contrary to and inconsistent with the public interest to grant the defendant a discharge. The Crown seeks an order of custody in these circumstances and submits that the mitigating circumstances in the named cases do not apply. The Crown refers to the following cases for support that a period of custody should issue, namely, R. v. E.H., [2012] N.J. 277 (Nfld. & Lab. Prov. Crt.); R. v. J.T.R., [2011] N.J. No. 339 (Nfld. & Lab. Prov. Crt.); R. v. Hodder, [2010] N.J. No. 144 (Nfld. & Lab. Prov. Crt.); R. v. Gallant, [2012] N.J. No. 141 (Nfld. & Lab. Prov. Crt.). All of these cases are the decisions of Justice W. Gorman of the Newfoundland Provincial Court. J.B. referred to by the defence is also a decision of Justice Gorman.
[41] In E.H., the accused was previously convicted of spousal assault, did not comply with reporting provisions to a previous probation order, did not express any remorse for his offences which included hitting with an open hand his child's buttocks and stomach, spitting on them and locking another into a bedroom after hitting the second child. In J.T.R., the accused engaged in a prolonged assault of his son, including punches and injury to his arm, neck and chest including causing his son to fall down five stairs and hitting his head. The accused had a number of previous criminal convictions and was a regular past user of alcohol and marijuana. In Hodder, after trial was found guilty of striking his son near his mouth and eye. The accused was unemployed, had no income, lived with his mother and had an extensive criminal record including acts of violence. In Gallant, the accused struck his son twice in the face, knocked him to the ground and kicked the victim in the face. The accused had no prior violent convictions but a drug and criminal background. The accused was attempting to collect a debt from his son and was not administering any misguided means of discipline.
Conclusions
[42] I find all of the cases cited by the Crown are distinguishable on their facts and circumstances. Those facts include offenders with criminal records, lack of remorse, after trial sentencing and assault tied to injury (i.e. collecting a debt) rather than misguided discipline attempts.
[43] Regardless of the potential immigration consequences for this offender, which may or might well prevail regardless of my decision, I have concluded that the grant of conditional discharge is warranted in these circumstances.
[44] I have considered the following mitigating circumstances of the defendant:
a. He has no previous criminal record or criminal antecedents;
b. He immediately expressed remorse and responsibility for his actions;
c. He has pled guilty to this offence; his is not an early guilty plea but a guilty plea nonetheless;
d. His efforts at rehabilitation and improvements in parenting are exemplary. He has completed multiple courses and programs in effective parenting and controlling anger management issues at the direction of the Children's Aid, Hiatus House, the Canadian Mental Health Association together with ongoing individual assessment and counselling by mental health professionals and programs and demonstrates a real willingness to participate, to apply what he has been taught and to recognize his own role and accept responsibility in the assault that occurred;
e. At the time of these events, the defendant was suffering from depression and anxiety related to his mother's death and his own traumatic upbringing. He has sought medication and counselling related to his anxiety and depression and he expects to continue his attendance and progress thereat;
f. The defendant is described as a good and loving father; he was the primary caretaker for the children until this offence occurred. His partner describes him as loving and non-violent. His children express a desire to see him and his access visits are ongoing, and increasing;
g. He has no substance abuse or gambling issues;
h. His assault on K.B. was a misguided and an inappropriate use of corporal punishment that he now realizes was inappropriate and he was entirely responsible for. He appears to fit into the second category of cases where he is largely unskilled and does not understand the implications of using corporal punishment and acted out of emotional upset, frustration and impatience, not appreciating the serious injuries (i.e. physical and emotional) which might result;
i. This is not the most serious of child assault cases, at the same time it is not trivial or trifling;
j. K.B. and he share a close and loving relationship;
k. The Office of the Children's Lawyer is supportive of his progress and although more work and progress needs to be completed, he has their full support and encouragement;
l. His level of recidivism appears to be low, he is of good character, with a supportive family and positive support system comprised of his family and mental health professionals and programs, his pre-sentence report findings are positive, he accepts responsibility for his behaviour, he expresses true remorse and he demonstrates an awareness of what led to his behaviour;
m. The accused spent what I understand to be five days custody arising from his arrest on these charges when he was detained by immigration officials together with the children being removed from his care and his partner's care for some period of time.
[45] I have also considered the following aggravating circumstances of this offence:
a. The defendant committed an act of violence against his six year old son, using a cord to strike him repeatedly about his arms, chest and back. In the course of doing so he cut his son with the USB charger on his arm and left welts on his back and arms. As I indicated above, this is not the most serious case of violence as there are degrees of seriousness, but it is neither trifling nor insignificant;
b. His moral culpability is high;
c. The defendant's use of corporal punishment involved the use of an object in the course of discipline which is not authorized or protected under s. 43 of the Criminal Code;
d. The defendant committed a breach of trust when he used violence against his son;
e. The child, K.B. has likely been traumatized by these events including his resulting separation from his family and siblings; and
f. This may not have been an isolated incident. I say "may" as the evidence was not persuasive or compelling on this issue.
[46] Having considered the aggravating and mitigating circumstances, the important objectives of deterrence and denunciation in cases of child abuse, the accused's exemplary efforts at ongoing rehabilitation and his demonstration of remorse, his mental health issues at the time of this offence, his lack of criminal antecedents, his guilty plea and the other factors that I have previously identified, I am satisfied that the imposition of a conditional discharge would be in the defendant's best interests and more importantly, in respect of the public interest, that it would not be contrary to the public interest as this case calls for restraint, emphasis upon rehabilitation through counselling and encouraging the defendant's efforts at becoming a better parent without demanding a criminal conviction.
[47] I am mindful that a duly informed public, learning of all of the circumstances, including the removal (i.e. apprehension) of the children for protection purposes, the defendant's efforts at counselling and rehabilitation and his genuine love and affection for his children and their reciprocating love and affection for him, would not be offended nor would the public interest and the public confidence in the administration of justice, be compromised or undermined with the grant of a discharge. I am satisfied that when the entire circumstances of this offence and the defendant's personal circumstances are considered it would not be contrary to the public interest to grant a discharge in this specific case. This is not a case for the imposition of a term of custody. All of the cases referred to by the Crown can be distinguished for the reasons I have identified.
[48] I find this is one of those rarest and exceptional of cases where a conditional discharge is appropriate. The period and terms of probation that I will apply will also offer the additional support and direction that the defendant requires. This sentence will serve as the clearest of examples to the public at large that corporal punishment is no answer to loving parenting coupled with effective discipline and that such practices can potentially result in dire consequences for those who conduct themselves in a similar fashion towards their children. This message may well be the most effective deterrent for those who would abuse their children due to ineffective or inadequate parenting acting out of emotional upset, frustration or impatience, and without full appreciation of the serious injuries which might result.
[49] Despite the defendant's immigration circumstances and his potential for deportation, I would grant the discharge sought for the reasons I have indicated.
Sentencing Order
[50] Accordingly, I hereby order the following:
a) There shall be an Order for a conditional discharge with a period of probation to follow for 36 months;
b) In addition to the statutory conditions which apply, F.B. must:
i) Report to a probation officer today and thereafter as directed;
ii) Cooperate with your probation officer, sign all releases of information and provide proof of compliance with any condition;
iii) Do not contact or communicate directly or indirectly by any physical, electronic or other means your children, namely K.B., Q.B., J.B. and D.B., except pursuant to the terms of a Court Order made after today's date;
iv) Do not attend any residence, school or place of worship of your children named above unless permitted by the Windsor Essex Children's Aid Society;
v) Do not possess any weapons;
vi) Do not purchase, possess or consume alcohol or other intoxicating substances;
vii) Attend and actively participate in all assessments, counselling and treatment directed by probation and complete them to your probation officer's satisfaction;
viii) Sign all releases of information to enable your probation officer to monitor your attendance and completion of all assessments, counselling or rehabilitation programs;
ix) Provide proof of attendance and completion of all assessments, treatment and rehabilitation programs to your probation officer;
x) Continue your participation with the Canadian Mental Health Association, Windsor Essex County Branch under the supervision of your probation officer;
xi) Take such medication as is prescribed by your treating physician and in such doses and times prescribed to you.
c) A s. 109 Order for a period of 10 years; and
d) An Order of DNA.
Released: April 9, 2018
Original Signed and Released
Justice Sharman Bondy