Court File and Parties

Date: 2018-04-26

Court File No.: Brampton 16-12955-00, 16-10571-00

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Steven Fernandez

Before: Justice P.A. Schreck

Heard on: April 6, 2018

Reasons for Sentence

Counsel:

• A. Simitsis, for the Crown
• H. Doan, for Steven Fernandez

SCHRECK J.:

[1]

Steven Fernandez was employed as a personal support worker ("PSW") at a long term care facility. For reasons that are unclear, he punched a 97-year-old woman in his care, causing severe bruising. As a result, he was charged with assault causing bodily harm and was found guilty following a summary conviction trial. He must now be sentenced.

[2]

As is often the case, determining the appropriate sentence requires the court to balance competing objectives. On the one hand, given the nature of the offence and the vulnerability of the victim, the sentence that is imposed must achieve the objectives of general deterrence and denunciation. On the other hand, Mr. Fernandez is a youthful first offender, so any sentence that is imposed must also facilitate his rehabilitation. The challenge is to give effect to each of these important objectives without compromising the other.

I. FACTS

A. Circumstances of the Offence

(i) The Assault

[3]

In August 2016, Steven Fernandez was employed as a PSW at a long term care facility in Mississauga. He had recently been hired following completion of his training. The victim, Mrs. O.Y., was a resident of the facility. At the time, she was 96 years old. However, she was a relatively independent person who did not require much assistance with her activities of daily living.

[4]

At some point, Mr. Fernandez came into Mrs. Y.'s room. She did not notice him at first. Once she did, she became startled and tried to leave the room. As she did so, Mr. Fernandez punched her on the arm once or perhaps twice with a closed fist, causing a large and pronounced bruise. He did not say anything at the time. Mrs. Y. managed to leave the room. Although she could not speak English, she managed to convey to a nurse what had happened. Mr. Fernandez was sent home. He was later arrested and his employment at the facility was terminated.

(ii) Victim Impact

[5]

Mrs. Y's granddaughter, Ms. L, completed a Victim Impact Statement ("VIS"). It contains information from Mrs. Y. which she relayed to Ms. L., as well as information from Ms. L. herself who, as it turns out, has considerable experience working in long term care facilities. No objection was taken to the VIS and I am satisfied that both Mrs. Y. and Ms. L. meet the definition of "victim" in s. 2 of the Criminal Code.

[6]

Mrs. Y. is, by all accounts, a remarkable woman. She supported her children by herself in Korea after her husband was killed during the Korean War. She immigrated to Canada in the 1960s and has lived here since, despite not being able to speak English.

[7]

Remarkably, Mrs. Y. seems to bear no ill will towards Mr. Fernandez. To the contrary, she has expressed concern about how Mr. Fernandez's decision to commit the offence has negatively impacted his life, as well as concern for the implications Mr. Fernandez's conduct will have on his family. Understandably, she would like to know why Mr. Fernandez assaulted her and she is concerned that he may be able to continue to work with elderly and frail patients.

[8]

Mrs. Y. has not spoken to anybody about the impact the offence had on her and according to Ms. L., she would not want it mentioned to the court. However, it is clear that as a result of the offence, Mrs. Y. had to move to another long term care facility which is far away from her family. This move significantly increased her social isolation.

B. The Offender

[9]

Mr. Fernandez is 26 years old and has no prior criminal record. According to a presentence report ("PSR"), he was raised by caring parents, with whom he continues to live. There is no suggestion of any mental health or addiction issues.

[10]

Mr. Fernandez graduated from high school, following which he completed a six-month diploma program to become a PSW. He graduated from the program with honours. He is currently employed at a construction company.

[11]

Mr. Fernandez was convicted following a trial at which he testified and denied committing the offence. However, he admitted committing the offence to the author of the PSR, to whom he said, "My initial dishonesty turned to a ball of lies that snowballed out of control, and I was too scared and embarrassed to turn things back." He told the author of the PSR that he wished to apologize to the victim for the pain and suffering he has caused her and her family. He apologized to the victim again when given an opportunity to address the court.

[12]

The motivation for this offence remains unclear, although Mr. Fernandez told the author of the PSR that his anger was a "contributing factor".

II. ANALYSIS

A. Positions of the Parties

[13]

On behalf of the Crown, Ms. Simitsis submits that a sentence of imprisonment for four to six months is appropriate, followed by two years of probation. On behalf of Mr. Fernandez, Mr. Doan submits that there should be a non-custodial sentence or, in the alternative, an intermittent sentence.

B. Aggravating and Mitigating Factors

(i) Aggravating Factors

[14]

The most significant aggravating factor in this case is that the assault constituted a breach of trust in relation to a particularly vulnerable victim. As well, the assault was entirely unprovoked.

[15]

During submissions, Crown counsel suggested that the fact that Mr. Fernandez testified and gave false evidence denying the offence is also an aggravating factor. It is not. This has been made clear in a number of cases, most recently in R. v. Ellacott, 2017 ONCA 681, at para. 22:

It is well established that a plea of guilty counts as a mitigating factor on sentencing, but neither a decision to plead not guilty nor the manner in which an accused person presents his or her defence is to be treated as an aggravating factor: see R v. Kozy (1990), 58 C.C.C. (3d) 500 (Ont. C.A.) at 506, and R. v. Bradley, 2008 ONCA 179, 234 O.A.C. 363 at para. 16. As the court explained in Kozy at 506, "any perceived impingement upon the manner in which a defence is to be conducted, such as a fear that a particular tactic might induce a heavier penalty, would impair the right to full answer and defence".

(ii) Mitigating Factors

[16]

The most significant mitigating factor is that Mr. Fernandez is a youthful first offender. I note, as well, that he has expressed remorse. These expressions of remorse were made after trial and are deserving of far less weight than remorse expressed through an early guilty plea. Nonetheless, I accept Mr. Fernandez's expressions of remorse as genuine.

C. Relevant Principles of Sentencing

[17]

This is a case of what is sometimes referred to as "elder abuse", that is, abuse of an elderly person by his or her caregiver. I agree with Crown counsel that the principles of deterrence and denunciation are of particular importance in such cases. The sentence that is imposed must clearly denounce Mr. Fernandez's conduct and also deter him and other like-minded individuals from engaging in similar conduct.

[18]

Crown counsel relied on a number of "elder abuse" cases in support of her submission that a four to six-month jail sentence is appropriate. Crown counsel drew my attention in particular to a passage from R. v. Foubert, [2009] O.J. No. 5024 (S.C.J.), at paras. 29, 31-32:

Fundamental to my decision is the recognition that Canada has an aging population. Each year increasing numbers of elderly persons are being placed in long term care facilities. Many of these care facilities have locked wings for patients suffering from Alzheimer's disease and dementia, similar to the locked wing reserved for the war veterans who were under Mr. Foubert's care. Studies filed by the Crown demonstrate that elder abuse is a growing problem in our society that must be seriously addressed.

Caregivers must know that if they abuse their position of trust and authority over vulnerable individuals, the court shall deal with them harshly. Caregivers often work in environments where witnesses are not present. As such, they must deal with those entrusted to their care in the utmost good faith. Families who entrust their aged parents to institutions often do so with a sense of overwhelming guilt and desperate resignation. They have the absolute right to expect that those entrusted with the care of their aged parents will at all times act professionally, and within the bounds of the law.

In my view, the only way to ensure that this bond of trust remains intact is for the courts to determine that caregivers who breach that trust will be sent to jail. In my view, incarceration is the only reasonable alternative to ensure a safe and secure environment for those extremely vulnerable individuals who are at the mercy of their caregivers.

[19]

Foubert has been cited in a number of sentencing decisions involving facts similar to this case, assaults by caregivers on vulnerable persons in their care: R. v. Xiao, 2017 ONCJ 721, at para. 29; R. v. Lamsen, 2014 ONCJ 670, at para. 15; R. v. Kos-Rabcewicz-Zubkowski, [2010] O.J. No. 5881 (C.J.), at para. 35; R. v. Lozada, 2013 ONCJ 770, at para. 30; R. v. Christie, 2016 BCPC 375, at para. 4; R. v. Dumo, 2015 ABPC 219, at para. 23; R. v. Donovan, 2013 NSPC 83, at para. 46. The sentences imposed in those cases range from a suspended sentence to imprisonment for several months. I will return to Foubert later in these reasons.

[20]

The four to six-month sentence sought by the Crown would undoubtedly give effect to the objectives of denunciation and deterrence. However, those are not the only sentencing objectives that I must consider. Mr. Fernandez is a youthful first offender. The law is clear that in sentencing youthful first offenders, courts must have regard for the objective of rehabilitation and must impose a custodial sentence only where no other sentence is appropriate in the circumstances: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at paras. 18-20; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-34.

D. Balancing Objectives

[21]

The jail sentence proposed by the Crown would give full effect to the objectives of general deterrence and denunciation. However, it would result in Mr. Fernandez being removed from the supportive environment of his family and would prevent him from continuing his employment and being a contributing member of society. This would impede rather than promote his rehabilitation. Conversely, a suspended sentence would promote Mr. Fernandez's rehabilitation, but would fail to denounce his conduct or deter others.

[22]

The difficulty of having to balance competing objectives is not unique to this case. It is one faced by most sentencing judges. There is ultimately no one correct way to achieve this balance, which is why courts are usually given a wide latitude in determining the appropriate sentence in any given case: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11.

[23]

Having carefully considered this matter, I have concluded that the competing objectives in this case can best be balanced through the imposition of a conditional sentence. I am satisfied that the prerequisites for such a sentence set out in s. 742.1 of the Criminal Code are met. In particular, I am satisfied that imposing such a sentence would not endanger the safety of the community. In this regard, I note that Mr. Fernandez has been on bail for a significant length of time and there has been no suggestion that he has re-offended.

[24]

I am also satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. It is well established that a conditional sentence can provide general and specific deterrence and a denunciatory effect: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 105-107; R. v. Wismayer (1997), 33 O.R. (3d) 225 (C.A.), at paras. 53-54. At the same time, a conditional sentence will promote Mr. Fernandez's rehabilitation.

[25]

I recognize that the court in Foubert said that the only way to ensure that the bond of trust between caregivers and those they care for remains intact is for the courts to send those who breach that trust to jail. However, I do not read this as a requirement that a custodial sentence be imposed in all cases of this nature. The reasons in Foubert must be read in the context of the facts of that case, which are more aggravated than the facts of this case. As well, the court in Foubert appeared to have evidence of the prevalence of elder abuse. I have no such evidence in this case. I am not prepared to assume that the evidence in Foubert, a case decided nine years ago, remains accurate today.

[26]

I recognize that the sentence I am imposing will have less of a denunciatory and deterrent effect than the sentence proposed by the Crown. However, it would be wrong to view this sentence as a failure to recognize the severity of Mr. Fernandez's conduct or its impact on Mrs. Y. I have no doubt that the impact on her was devastating, and I have no doubt that she and her family continue to feel that impact.

[27]

As mentioned earlier, Mrs. Y. bears no ill will towards Mr. Fernandez. Her main concern is to ensure that he does not pose a threat to other elderly persons. I share that concern. As a result, I intend to include as a condition of his sentence a requirement that Mr. Fernandez not be in the presence of any person over the age of 65 except for an immediate family member, unless in the presence of another adult.

III. DISPOSITION

[28]

For the foregoing reasons, Mr. Fernandez is sentenced to a term of imprisonment for six months, to be served in the community. In addition to the statutory terms, he is to abide by the following terms:

1. Report immediately in person to a supervisor 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 your supervision.

2. For the first three months of the sentence, remain in your place of residence at all times, subject to the following exceptions:

   • While at or travelling to or from your place of employment.
   • To attend any pre-arranged medical, dental or legal appointment.
   • Once per week, at a time to be specified, for a period of four hours to obtain the necessities of life.
   • For any medical emergency involving you or your immediate family.

3. For the remaining three months of the sentence, observe a curfew between 8:00 p.m. and 6:00 a.m., subject to the exceptions for employment and medical emergencies mentioned above.

4. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with O.Y. or members of her immediate family.

5. Do not be within 500 metres of any place where you know O.Y. to live, work, go to school, frequent or any place you know her to be.

6. Do not be in the presence of any person over the age of 65 other than an immediate family member, unless in the company of another adult.

7. Do not possess any weapons as defined by the Criminal Code.

8. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of your supervisor.

[29]

Following the completion of the conditional sentence, Mr. Fernandez will be placed on probation for a period of 18 months on the same terms and conditions, with the exception of the terms confining him to his residence or the curfew.

[30]

There will also be an order made pursuant to s. 110 of the Criminal Code for a period of five years. As well, Mr. Fernandez will be required to provide a sample of his DNA for inclusion in the national databank.

Justice P.A. Schreck

Released: April 26, 2018

[*] This matter was heard pursuant to s. 669.3 of the Criminal Code.