Court File and Parties
DATE: April 7, 2021 COURT FILE No: 1311-998-19-191435 ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
-AND-
J.K.
Before: Justice Michael G. March
Submissions on Sentence heard: January 25, 2021 Reasons for Sentence released on: April 7, 2021
Counsel: Lynn Ross, for the Crown Jeffrey Van de Kleut, for Ms. Kellar
March, M.G., J. :
Introduction
[1] On November 30, 2020, I found J.K. guilty of:
a) assaulting her son KK.1 with a belt contrary to section 267 (a) of the Criminal Code (the “Code”),
b) unlawfully confining him in her basement without lawful authority contrary to section 279(2) of the Code, and
c) assaulting him by slapping his head and squeezing his chin contrary to section 266 of the Code.
[2] My reasons for decision in finding J.K. guilty of the above offences are reported at R. v. J.K., 2020 ONCJ 557.
[3] Briefly, I found as a fact that J.K. frequently used a belt on her son, K.K.1, then roughly 8 to 9 years of age, over a time period spanning from January 2018 to June 14, 2019, to punish him for misbehaviour.
[4] On occasion, but not nearly as often, J.K. confined K.K.1 in her basement to discipline him for, amongst other things, stealing.
[5] J.K. also slapped K.K.1 in the head and squeezed his chin; however, I found those to be discreet incidents on the evidence adduced at J.K.’s trial.
Crown’s Position on Sentence
[6] The Crown seeks a period of incarceration of 18 to 24 months. A period of probation ought to follow, it contends, restricting J.K.’s access to children under the age of 16.
[7] By way of ancillary orders, the Crown requests that J.K. provide a sample of her DNA to the authorities pursuant to section 487.051(2) of the Code.
[8] The Crown further asks for a weapons prohibition for a period of 5 years under section 110 of the Code.
[9] Pursuant to section 743.21 of the Code, the Crown seeks a non-communication order between J.K and K.K.1 during the service of any custodial portion of her sentence.
Defence Position on Sentence
[10] Defence counsel on behalf of J.K. seeks a conditional sentence of 20 months duration.
[11] The defence concedes that owing to the punitive aspects a conditional sentence must comprise in a case such as this one, a substantial period of house arrest ought to be imposed with the usual exceptions for employment, medical and dental emergencies affecting J.K. and her immediate family members, and, for a limited window on one day of the week, for taking care of her necessaries of life.
[12] For that portion of the conditional sentence for which J.K. is not subject to house arrest, a strict curfew of 7:00 p.m. to 6:00 a.m. should be in effect.
[13] A period of probation ought to follow to govern J.K.’s conduct and to assist in her rehabilitation.
Analysis
[14] In arriving at a fit disposition for J.K., I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.
[15] J.K.’s sentence must be an appropriate one upon consideration of the circumstances of the offences she committed as well as her personal circumstances.
[16] Most importantly, the punishment I impose must be proportionate to the seriousness of her offences and the degree of her responsibility for them.
Denunciation and Deterrence
[17] Some three years before the Code was amended to include section 718.01 directing sentencing judges to give primary considerations to the objectives of denunciation and deterrence where a person under the age of 18 years has been abused, Moldaver J.A., as he then was, recognized in R. v. D.D. at para. 35:
[35] We as a society owe it to our children to protect them from . . . harm . . . Our children are at once our most valued and our most vulnerable assets.
[18] D.D. was, of course, a case where the offender perpetrated horrible crimes of a sexual nature against child victims; however, the language chosen by Moldaver J. ought to apply generally in every case where an adult abuses a child. Children deserve nothing less than special, full protection from our courts of law.
[19] Much of what Moldaver J.A. enunciated in D.D. essentially echoed what he had earlier written in R. v. Johnson, [1995] O.J. No. 3764 at para. 13:
“Serious crimes of violence against defenceless children warrant a strong and firm response from the courts. Children are amongst the most vulnerable in our society. Unquestionably, parents occupy a position of trust towards their children. Child abuse amounts to a gross violation of that trust. Parents who would engage in child abuse must know in no uncertain terms that such misconduct is inexcusable, without exception, and that it will not be tolerated”.
[20] Accordingly, I must settle upon a sentence which denounces J.K.’s disturbing mistreatment of her son, K.K.1. I must deter her from ever considering disciplining another child in a similar manner by using a belt to strike him or her, physically abusing him or her, or locking him or her in a basement. As well, I must deter likeminded individuals to consider the consequences of what will ensue if they perpetrate such crimes upon a child.
Separation from Society
[21] Offenders must be separated from society where necessary. Our Canadian concept of criminal justice requires courts to always examine less restrictive sanction before resorting to the criminal sanction of last resort – incarceration.
[22] There can be no doubt that J.K.’s offences committed against her son were serious and deserving of societal condemnation. However, I must carefully scrutinize whether she needs to be institutionally confined to protect the public at large, which section 718 (c) of the Code directs me to consider. Having heard the evidence called at J.K.’s trial, and the submissions made and materials relied upon at her sentencing, I can confidently conclude that J.K. is not such an individual.
Rehabilitation
[23] I cannot lose sight of the fact that J.K.’s other young son, K.K.2, age 9, wishes someday to reunite with his mother. He said as much when he testified at her trial. Indeed, it was the main driver for him being less than completely truthful in his testimony.
[24] I have carefully read J.K.’s Pre-Sentence Report (PSR) prepared for my assistance. It was quite positive in many aspects. The author quoted her common law partner describing J.K. as “caring, loving, helps whenever she can, supportive”. Although he has only been in a relationship with J.K. for 7 months, he has known her for 30 years. He added, “I don’t support child abuse, but I support her”.
[25] J.K.’s mother, G.D., described her daughter as a “really good kid. Good in school. An all-around good kid”. Her close friend, A.T., characterized J.K. as “always happy”, “there to help you”, “great support”, and “a great person”.
[26] J.K.’s oldest child and daughter, Z.R., spoke glowingly of her mother, J.K. Z.R. told the PSR writer, “She [J.K.] is my best friend. I tell her everything. If I have a bad day, she comes talk, or we walk. We used to go to dinner weekly until Covid.”
[27] A week after being found guilty, J.K. volunteered for the “Sleep Out Challenge” to raise awareness in her community of the plight of the homeless. She slept outside on December 7, 2020. Her efforts assisted in raising over $10,000.00 for a non-profit group, “Cooked with Love for Those That Need”. Earlier, she was selected as the “Goodwill Ambassador” for a summer festival in Trenton.
[28] J.K. is gainfully employed. It appears that her daughter, Z.R., her son, K.K.2, and her mother, G.D., are financially dependent upon J.K. She gets by from pay cheque to pay cheque. She is struggling to hold on to the home in which she has lived for the past 9 years paying $1550 per month against her mortgage out of her very modest income.
[29] Up until she was charged with the offences for which he was found guilty, she successfully ran a private daycare over the course of a four year period for special needs children. She, of course, lost this business as a result of the nature of the charges laid against her. No allegation of mistreatment of any of her clients’ children was ever levelled against her following an investigation conducted by the child protection authorities.
[30] She completed a college program to qualify herself for a position as a personal support worker (“PSW”). During points of her trial, she was working in a nursing home as a PSW. She lost this employment when someone notified her boss of her current legal situation.
[31] At present, J.K. has been working at Rona, a building supplies store, for the last few months. The Assistant Manager wrote a letter dated January 22, 2021 on behalf of J.K. He is a man who has known J.K. for almost 31 years. He has been a close friend of hers for 12 of those.
[32] He describes J.K. as “efficient, detail oriented, and extremely competent”. He has designated her as his inventory manager. He states, “she is extremely organized, never misses a deadline or forgets an assignment.”
[33] It is clear from the penultimate paragraph of his letter that he has no idea of the nature of the offences for which J.K. is about to be sentenced, but not much turns on her lack of candour in asking him for the letter which he wrote on her behalf. J.K. is understandably embarrassed by her situation.
[34] The PSR author indicated that in her interview with J.K. that the offender expressed great remorse for her behaviour and was emotional in discussing the one incident she acknowledges where she struck K.K.1 with a belt. J.K. enrolled in a parenting program online aimed at teaching “calm” parenting styles. She is willing to pursue further programs as recommended.
[35] J.K. reflected upon and shared her feelings with the PSR author about her ordeal since she was charged and ultimately found guilty for the offences before the court. It warrants repeating here in its entirety:
“I had a void. I got my son [K.K.1] home finally. I was so happy. Why would I do this? Very stressful. Extreme anxiety. I’m medicated for that or I might not know how to cope. Everyone is affected, my mom, kids. I’ve always had children in my life. It’s awful to be seen as a child abuser. Rumours affect me and my kids. We might need family counselling and I’m completely willing to work with CAS, but I don’t hear from them, so I don’t know what they expect at this point. If I go to jail I will lose my house, lose my job, my mom won’t get my support and my daughter has no one. If I get any community sentence, willing 100% to follow all rules. My fiancé will take me to work and home, to medical appointments, counselling, anywhere. He’s very supportive. I’m so sorry for any pain this has caused anyone. I hope my sons, mom and daughter don’t have to suffer anymore. They will if I go to jail. I was found guilty. I will follow all the rules. I just want to move on and have everybody have peace and heal.”
Reparations for Harm Done to the Victim and the Community
[36] There is little J.K. can do to make amends for the psychological harm she has caused to her son, K.K.1. Those scars he will likely carry to the end of his days. My sincere wish is that child welfare agencies will step in to assist K.K.1 in getting the counselling and psychiatric care he may require to put an end, if possible, to the sad chapter of his life J.K. wrote for him.
[37] In his Victim Impact Statement, K.K.1 spoke of the tragedy he has endured thus far. I shall reproduce his statement in its entirety. It jarringly sets out his struggles. It reads:
“I have never had a normal family life. The most recent event [J.K.] would beat me, she would not give me my meds and make me go hungry a lot of the time. It was very stressful living with [J.K.] and there was always drama and disaster around us. She always blamed everyone else and she lied constantly. She always had parties at the house. I would be locked in the basement for days with no food.
I am not seeing doctors to help me deal with everything that has happened to me. From things like worrying about what will happen to me next time I see her, what she will do. To nightmares, waking up in the night terrors to even when I go back to [name of community redacted]. I have panic attacks. She has destroyed any family connection I have known with her lies. Me and my brother [K.K.2] used to be best friends. Now we are the worst enemies. It’s unfair how she has destroyed everything in my life.
I know it’s Christmas time and I have no family from the past because of her. It makes me sad. Only my new family now.”
[38] I can only hope that at some point in her life, J.K. will accept responsibility for what she did to her son, K.K.1, and make amends to him somehow. That will, of course, require J.K. to put aside her own self-interest and self-preservation. Those survival instincts she likely developed and honed as a result of the abuse she herself suffered in the past. However, the horrors she experienced as a child were no justification for her to visit the same fate upon K.K.1. I say this acknowledging full well that K.K.1 was at times an extremely difficult child to manage.
[39] Recently, K.K.1 was reunited with his birth father. K.K.1 will demand much patience, love and affection from this man and his partner, if K.K.1 is to put the nightmare his life was with J.K. behind him.
[40] Fortunately, no lasting physical injury appears to have been suffered by K.K.1 as a result of corporeal punishment inflicted by J.K.
[41] If there is a bright side, and from a broader perspective, J.K. has always been a community minded person. No one disputes that she delights in this type of work. I have every confidence that she will dutifully perform any hours of community service which she is ordered to complete.
Promotion of a Sense of Responsibility and Acknowledgement of Harm
[42] In tailoring a sentence for J.K., I intend to address what I believe to be the root cause for her criminality. By all accounts, she was physically and verbally abused by her stepfather and former domestic partners. The belt was used upon her as a child as a form of punishment. Educating her on proper forms of discipline, no matter how many challenges the child she is raising may present, is most definitely in the offing for J.K. The cycle must stop. I owe this duty to her youngest child, K.K.2.
[43] I expect the Highland Shores Children’s Aid Society to keep J.K. under close scrutiny for many years to come. The Society knows her all too well. If she is ever to be given the opportunity to parent her youngest child K.K.2 in future again, J.K. must learn to be open and honest with the Society. She must cooperate and fulfil any recommendations it makes. She must desire real change in her life.
[44] Likewise, the Society ought to offer what resources it can to help K.K.1 heal as well.
[45] I do hope that J.K.’s new common-law partner will support her and bring about change in her attitude towards the Society, its mandate to protect children and to foster healthy relationships between children and their parents.
[46] J.K.’s historical struggle with substance abuse, I suspect, was her own form of ill advised, self-medication and therapy. She must find better ways.
[47] She recognizes that she has issues with depression and anxiety. To say that she has been stressed by the criminal and child protection proceedings brought against her is, no doubt, an understatement. She referred herself recently for local community counseling, and was assigned a mental health counsellor on January 20, 2021. I encourage her in her efforts to deal with her past demons.
[48] J.K. is to be credited for her willingness to submit to drug tests as recommended by the Court as well.
[49] Acknowledgement of the harm she has caused is sadly another matter. J.K. is prone to lashing out at others as the cause for her problems. She deflects responsibility away from herself. She refuses to look inward to assess the reasons why her life has taken so many a bad turn. Those tendencies on her part must change as well.
Aggravating Circumstances
[50] Upon review of the offences committed by J.K., I find the following factors to be aggravating:
a) she abused a child under the age of 18 (s. 718.2 (a)(ii.1) of the Code),
b) she grossly abused her position of trust and authority as a mother by disciplining her young son in the way she did,
c) her offences have had a significant and perhaps lifelong psychological impact on K.K.1, and
d) her offences were repeated over a non-specific, but considerable period of time.
Mitigating Circumstances
[51] I consider as mitigating that:
a) J.K. has no prior convictions for crimes of violence,
b) she has the support of her family members, her partner, her friends and her employer,
c) she has a history of employment demonstrating a willingness to provide for herself and her dependents,
d) albeit late in the day, she has enrolled herself in parenting and mental health programs, and is willing to undergo a full psychiatric or psychological assessment,
e) she has some insight into the driving force behind her criminality, which, if properly explored and addressed, may assist in her rehabilitation, and
f) she exhibits qualified, almost grudging, remorse for her conduct, but remorse it remains nonetheless.
Parity
[52] Section 718.2 (b) of the Code provides:
“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
[53] The law strives for certainty, conformity and predictability. Seldom however are two cases completely alike. Moreover, sentencing must always be an exercise geared to the particular circumstances of the offence(s) committed and the circumstances of the offender.
[54] In light of the parity principle, the Crown has provided me with a number of authorities for my consideration. Some bear resemblance to J.K.’s case, but all are distinguishable. This observation is offered as no criticism of the Crown.
[55] In R. v. Challu, [2008] O.J. No. 3576, Shaughnessy J. on a summary conviction appeal upheld the sentence of six months incarceration and three years’ probation imposed upon the appellant by the trial judge for two counts of assault with a weapon. There the offender struck two of his children over a three year period “a lot”.
[56] K.K.1 used the same language in describing the frequency at which he was struck with the belt by his mother, J.K. However, the factual finding made by the trial judge in Challu seemed to have accepted the child’s further description of “a lot” or “a couple of times” to mean every second day. That was not K.K.1’s evidence at J.K.’s trial. I was unable to determine with any precision how often in total J.K. struck K.K.1 with a belt. He testified that he would get it “most of the time” and “usually on the weekend”. When a spanking session occurred, J.K. would hit him with the belt roughly 5 times. On a few occasions, it left marks.
[57] In R. v. S.F., [2009] O.J. No. 3140, Wakefield J. found a mother guilty of two counts of assault, two counts of assault with a weapon and uttering a threat. Her victims were her twin sons aged nine years at the time the offences were committed. Not much detail was provided in the reported case to describe the nature of the offences, other than to indicate the use of an unknown weapon, a repeated pattern of behaviour employed by the offender and significant injuries which resulted to her boys, but which did not require medical intervention. A sentence of nine months’ incarceration followed by a period of two years’ probation was imposed by Wakefield J.
[58] In R. v. V.G., [2005] O.J. No. 4591, Trafford J. found the offender guilty of two counts of assault with a weapon, once where he used the belt, another where he used a paddle. V.G. was also convicted of administering a noxious substance, specifically feces.
[59] The facts involved V.G. using a belt or a paddle to punish J.U. for having an inability to control her bowel movements, or not properly cleaning herself after them. J.U. was merely a five-year-old child at the material time.
[60] V.G. would warn J.U. of his impending use of force against her by making a whipping sound with the belt by pulling it taut. On one occasion he left an impression of a belt buckle on her leg.
[61] I can glean as well from my review of the factual findings made by Trafford J. that the use of the belt and paddle was frequent. J. U. was trained to go lay on her bed for administration of her punishment.
[62] On one occasion, V.G. disgustingly made J.U. eat her own feces from her soiled underwear.
[63] Trafford J. imposed a period of incarceration of one year and probation for two years. He opted not to give V.G. a conditional sentence. He found that to do so would be inconsistent with the fundamental purpose and principles of sentencing. Insufficient emphasis would be placed on the principles of general and specific deterrence and denunciation according to His Honour in light of V.G.’s abuse of a vulnerable five-year-old child given the nature, extent and frequency with which it occurred.
[64] Again, although what J.K. did to K.K.1 constituted extremely serious and reprehensible, criminal acts, they did not, in my view, rise to the level of the abuse suffered by J.U. in V.G.
[65] In R. v. K.S., [1994] O.J. No. 2228, Vaillancourt J. imposed a sentence of 12 months’ imprisonment to be followed by a three year probationary term. The offender was the father of the 11-year-old victim. On an earlier occasion in April 1993, the offender received a suspended sentence and two years’ probation for assaulting the same victim, G.S., his daughter.
[66] On the day before K.S. assaulted his daughter causing her bodily harm, he struck her on the back with such force that it resulted in a welt. While trying to treat it on the day of the offence with a hot water bottle, K.S. lost control and hit out at his daughter again. The water, which had just been boiled in a kettle, sprayed all over G.S. causing first and second degree burns.
[67] In an attempt to hide his crime from the authorities, K.S. managed to fly G.S. to Florida where a relative with a medical background arranged for treatment of her injuries. A period of some seven hours elapsed between when the child was injured to medical treatment being provided.
[68] Unlike in K.S., K.K.1 suffered no physical injury on the scale that G.S. did. By pointing out this distinction however, I do not, for an instant, wish to downplay either the physical or psychological pain K.K.1 was forced to endure at the hands of his mother, J.K.
[69] In R. v. E.T., [2015] O.J. No. 1731, a jury found the offender guilty of three counts of assault with a weapon, aggravated assault, assault causing bodily harm and two counts of unlawful confinement. E.T.’s victim was her adopted son, J.R.
[70] At paragraphs 5 through 7 of the reported reasons for sentence, Corrick J. provided the following factual account of the assaults E.T. committed:
“Ms. E. T. began punishing J. R. by striking him with a belt when he was four years old. She changed from the belt to a wooden spoon and then to a metal spatula. J. R. described one incident in which Ms. E. T. tied his legs and arms together with duct tape, and then taped him face down to a dining room chair. She then hit his buttocks very hard with the metal spatula. Photographs of J. R.’s buttocks taken on May 7, 2012 shows that some of the skin on his left buttock had been removed, and had not yet healed.
In April 2012, Ms. E. T. punished J. R. for using the toaster oven to make French fries by hitting his knee and leg with the metal spatula. J. R. suffered a laceration to his right leg as a result.
On another occasion, Ms. E. T. held J.R.’s hand over a hot element on the stove until it blistered.”
[71] Medical examination revealed that E.T. also bit J.R. on his abdomen, thigh and at the base of his sternum.
[72] Further, E.T. confined J.R. in a small storage closet over a total period of four days with no food and a bucket for a toilet.
[73] Ultimately, Corrick J. imposed a total period of custody of 20 months jail after crediting E.T. for the 10 months she spent in pretrial custody. The principles of denunciation and general deterrence were paramount considerations in determining the length of incarceration to be imposed taking into account the prolonged physical abuse J. R. suffered over a period of years.
[74] The E.T. case would have been more helpful for my purposes, had I been able to discern the specific segment of incarceration Corrick J. felt the unlawful confinement would have attracted on its own. However, Her Honour appears to have imposed 20 months concurrent on each of the offences for which the jury returned a guilty verdict.
[75] In R. v. Jha, 2015 ONSC 4656, Baltman J. conducted an expansive survey of the case law dealing with sentencing for child abuse. At para. 46, Her Honour wrote:
“A review of the jurisprudence that has emerged on child abuse cases reveals certain common principles:
I. Serious crimes of violence against defenseless children warrant a strong response from the courts, particularly where this results in the child’s death: R. v. Johnson [1995] O.J. No. 3764 (Gen. Div.), para. 13;
II. Denunciation and deterrence are the paramount sentencing considerations: R. v. S.E.C., 2003 BCCA 421, para. 16;
III. Evidence of a pattern of abuse that was deliberate and protracted is an aggravating factor: S.E.C., paras 14, 18; R. v. G.S.J. [2007] O.J. No. 5079 (S.C.), para. 7; R. v. Lawrence [1987] O.J. No. 1250 (H.C.); R. v. Moracci [1977] N.S.J. No, 490 (C.A.), para. 63;
IV. Offenders who were themselves victims of abuse or who suffer from mental illness may have limited abilities to cope as a parent: R. v. Alexander, 2014 ONCA 22, para. 33; R. v. McCauley, [2007] O.J. No. 1593 (S.C.), paras. 28, 30.
V. A guilty plea, particularly at an early stage and where accompanied by sincere remorse, is a significant mitigating feature: R. v. Summers [2011] O.J. No. 6377 (S.C.), paras. 27-8.”
[76] I shall apply these principles in meting out a fit disposition for J.K.
The Availability of a Conditional Sentence
[77] Crown and defence counsel agree that a conditional sentence of imprisonment to be served in the community is legally available to J.K. She does not pose a danger to the community. Where counsel differ is whether a conditional sentence will be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code.
[78] Although decided more than 20 years ago, R. v. Proulx, 2000 SCC 5 remains the leading case from the Supreme Court of Canada on the propriety of the conditional sentence over a wide range of factual backdrops. At paragraph 90, Lamer C. J., as he then was, cautioned sentencing judges as follows:
“. . . a consideration of ss. 718.2(d) and 718.2(e) leads me to the conclusion that serious consideration should be given to the imposition of a conditional sentence in all cases where the first three statutory prerequisites are satisfied. Sections 718.2(d) and 718.2(e) codify the important principle of restraint in sentencing and were specifically enacted, along with s. 742.1, to help reduce the rate of incarceration in Canada. Accordingly, it would be an error in principle not to consider the possibility of a conditional sentence seriously when the statutory prerequisites are met. Failure to advert to the possibility of a conditional sentence in reasons for sentence where there are reasonable grounds for finding that the first three statutory prerequisites have been met may well constitute reversible error.”
[79] Further, at para. 100, Lamer C.J. explained:
“ . . . a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2 (d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.”
[80] Lamer C.J. went on to elaborate that judges should not place too much emphasis on deterrence in deciding between a conditional sentence or a period of incarceration. Conditional sentences can carry significant deterrence if sufficient punitive conditions are meted out and the public is made aware of the severity of the sentence. Aggravating factors, of course, attract the need for denunciation and deterrence, but one cannot rule out conditional sentences simply where such factors are present. It would be a mistake to do so.
The Propriety of a Conditional Sentence in the Circumstance of the Offence and the Offender
[81] After careful consideration of the applicable principles of sentence, I can conclude that a conditional sentence would be appropriate for J.K. I find that a conditional sentence of two years less a day, the first two thirds of which J.K. shall be subject to house arrest, can satisfy the primary objectives of denunciation and deterrence which must be respected in any sentence tailored for this offender in light of the offences she has committed.
[82] I have complete confidence that J.K. can fulfil the terms of the conditional sentence I shall impose. She successfully served the last conditional sentence which was handed down of six months duration on March 9, 2017.
[83] J.K. is widely known in the small town where she lives. Her community has, no doubt, heard of her crimes. It led to her loss of employment as a PSW. Probation Services and the Children’s Aid Society are well acquainted with her as well. Eyes will be on her constantly.
[84] She will long carry the stigma of being a child abuser.
[85] I urge J.K. to embrace whatever assistance can be offered to her by her conditional sentence supervisor and child protection workers to render her fit, if she can be made so, to parent once again K.K.2.
[86] A three year period of probation shall follow her service of the conditional sentence. Cumulatively, I intend to see to it that J.K. is subject to the scrutiny of state authorities for five years less a day.
Conclusion
[87] For the assault upon K.K.1 with a weapon, specifically a belt, contrary to s. 267 (a) of the Code, I shall impose a conditional sentence of 1 year less a day.
[88] For the assault upon K.K.1 contrary to section 266 of the Code, I shall impose a conditional sentence of 30 days to be served concurrently to her sentence for the assault with a weapon.
[89] For the unlawful confinement of K.K.1 contrary to section 279(2) of the Code, I shall impose a conditional sentence of one year consecutive to the sentences meted out for the assault with the weapon and the assault simpliciter.
[90] The terms of the conditional sentences shall be as follows;
a) reside at [address redacted], Ontario and not elsewhere,
b) attend at any assessment, counselling and rehabilitation programs recommended to you by your conditional sentence supervisor including specifically for parenting, mental health and anger management,
c) abide by a condition of home confinement for the first 16 months during which the conditional sentences are in effect, except for:
i) employment purposes,
ii) for medical and dental emergencies,
iii) for attendance at any assessment, counselling and rehabilitation programs recommended to you by your conditional sentence supervisor including for parenting, mental health and anger management, and
iv) on Sundays between 1:00 p.m. and 5:00 p.m. for attending to the necessaries of life,
d) sign any releases necessary to permit your conditional sentence supervisor to monitor your compliance and attendance at any assessment, counselling and rehabilitation programs recommended,
e) cooperate fully with your assigned Children’s Aid Worker,
f) do not be alone with any child under the age of 16 years unless that child or those children is or are approved of in writing by the Children’s Aid Society, or unless in accordance with a Family Court Order made after today’s date,
g) appear before the Court when required to do so,
h) report to a conditional sentence supervisor within two working days of today’s date,
i) remain within the jurisdiction of the Court unless written permission to go outside the jurisdiction is obtained from the Court or the supervisor,
j) notify the Court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation,
k) abstain from communicating, directly or indirectly with K.K.1, or attending within 100 m of his place of residence, place of schooling, place of worship or any other place you know him to frequent,
l) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol, or of any other intoxicating substance,
m) abstain from owning, possessing or carrying a weapon,
n) perform 240 hours of community service over a period not exceeding 18 months, and
o) keep the peace and be of good behaviour.
[91] The terms of probation shall be the same as those set out in paragraph 90 above except for clause c) dealing with home confinement.
[92] By way of ancillary orders, I shall impose the following:
a) J.K. shall provide to the authorities a sample of her DNA under authority of section 487.051(2) of the Code, and
b) under section 110 of the Code, J.K. shall be prohibited from possessing a weapon for 5 years as that term is defined in the Code.
[93] Again, I wish to thank Crown and defence counsel for their helpful and thorough submissions.
DATED: April 7, 2021 March, M.G., J.