Her Majesty The Queen v. N.P. and C.O., 2022 ONCJ 409

Date: September 6, 2022 Court: Ontario Court of Justice, Old City Hall - Toronto

Between: Her Majesty The Queen — And — N.P. and C. O.

Counsel: L. Will, for the Crown S. Chowdhury, for the Defendant, N.P. M. Murphy, for the defendant, C.O.

Submissions heard: June 28, 2022

Reasons for Sentence

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] On June 13, 2017, C.O and N.P. were each charged with two offences against their daughter, J.P.:

1. Failing to provide the necessaries of life to J.P., contrary to s. 215(2)(a)(i) of the Criminal Code, and;
2. Forcible confinement of J.P. contrary to s. 279(2) of the Criminal Code.

[2] Both defendants were tried before me in 2019 and on October 11, 2019 I found them both not guilty of all charges.

[3] The Crown appealed the acquittals and on July 3, 2020, McWatt J. overturned the acquittals and entered a conviction against both defendants on count 1. A new trial was ordered on count 2. 2020 ONSC 4076. Both defendants were remanded to the original trial court for sentencing.

[4] The defendants appealed the order of McWatt J. and on February 4, 2022 the Court of Appeal for Ontario affirmed the order of McWatt J. 2022 ONCA 103

[5] These are my reasons for sentence of both defendants on count 1, the Crown having chosen not to re-prosecute count 2.

B. The Circumstances of the Offence

[6] What follows (paragraphs 7 – 19) is the summary of facts as set out by the Court of Appeal, modified only as necessary for context.

[7] When the police entered the defendants’ apartment, they found partially eaten food throughout the apartment and cigarettes and garbage all over the living room floor. Some of the closets were full of bags containing garbage. The apartment reeked of urine and feces. There were flies everywhere and the walls were covered with fly feces.

[8] J.’s bedroom was particularly dirty. Her pillow and her bed smelled of urine. There was food on the mattress and insects buzzing around the food. The police found urine and feces on J.’s bedroom floor and a pile of old feces in her closet. J.’s pants were wet with urine and covered in grime. She was so dirty she had to be bathed before she could be medically examined. One of the officers testified that it was “impossible to breathe” in J.’s bedroom because the stench was so overpowering.

[9] The evidence did not show exactly how long J. had been living in the conditions observed by the police when they executed the search warrant. The trial judge did, however, accept the evidence that the conditions in the apartment, 11 days before the warrant was executed, were much the same as the conditions at the time the warrant was executed. There was also some evidence the defendants and J. had lived in very unsanitary conditions at another residence, about two or three years earlier.

[10] A psychologist who prepared a report for the Children’s Aid Society about four months after J.’s apprehension described J.’s cognitive functioning and motor skills as within the average range. J. showed lower levels of self-regulation and adaptive functioning as well as poor socialization. Her hyperactivity, impulsivity, and distractibility suggested she was at risk to develop an attention deficit disorder.

[11] It is unclear whether the psychologist was aware of the extremely unsanitary conditions in J.’s home. In any event, he was not asked to offer any opinion as to what effect, if any, those conditions had on J.’s psychological status.

[12] J.’s great-grandfather described J. as a bubbly, energetic and happy child before her apprehension by the authorities. He had been in the defendants’ apartment about four months before the police executed the search warrant. He described the apartment as “untidy”. He also indicated that whenever he saw J. she seemed clean and well dressed.

[13] J.’s great-grandfather assumed custody of J. sometime after she was apprehended by the child welfare authorities. He took steps to improve her socialization and her interpersonal skills. She was diagnosed with ADHD after she started to live with her great-grandfather.

[14] When the police executed the warrant, they found J.’s bedroom door closed. The doorknob on J.’s bedroom was attached by a rope to the doorknob on the bathroom across the hall. The rope prevented J. from opening her door from the inside. J’s inability to open her bedroom door when the rope was in place led to the unlawful confinement charge.

[15] Neither defendant testified but both gave statements to the police that were admitted at trial. They explained that J.’s door was tied shut during the evening because she had a tendency to leave her bedroom and get into things in the apartment, including laundry detergent and other dangerous materials. Sometimes, J. would scatter the material about her bedroom, but sometimes she would put it in her mouth. The defendants told the police they had taken J. to the Poison Control Centre more than once. According to the defendants, if J. needed to go to the bathroom during the night she would call out and one of the defendants would come from their bedroom and take her to the bathroom. As the condition of J.’s bedroom demonstrates, there were times when she urinated and defecated in her bedroom. She may not have called out to her parents, or she may have called out and the defendants either did not hear J., or chose to ignore her.

[16] In their statements to the police, the defendants explained that J. was a very active and somewhat destructive child with a tendency to get into things, some of which were dangerous. She would also smear her own feces on the wall of her bedroom. The defendants insisted they repeatedly tried to clean up the mess J. made.

[17] Although both defendants tended to understate the extremely unsanitary conditions in the apartment, and to fixate on J.’s conduct when explaining those conditions, both ultimately acknowledged in their statements that they were responsible for letting matters get so out of hand.

[18] There was no evidence that J. was malnourished, ill, or had been physically abused. There was also no evidence J. was ever locked in her bedroom when her parents were not in the apartment.

[19] The defendants were extremely poor. They had real difficulty making ends meet and keeping food on the table.

C. The Circumstances of C. O.

[20] C.O. is now 28 years old. At the time of the offence, she was just shy of her 23rd birthday. A presentence report was prepared and a report from a psychiatrist, Dr. Paul Benassi was filed by Ms. Murphy. Ms. Will does not contest the truth of C.O.’s statements in these reports.

[21] C.O. describes her upbringing as violent and emotionally and materially deprived. She received no help from her parents in becoming a functioning adult. Her father left the home when she was an infant and her mother abused drugs until she kicked C.O. out when C.O. was 15 years old. Child protective services became involved in her care when she was seven years old due to sexual abuse from her brother. They remained involved intermittently throughout her formative years. In 1999, C.O.’s mother called police to report that her 15-year-old nephew had sexually assaulted C.O. who was five years old at the time. The nephew had been residing with her temporarily. It is noted that the nephew admitted to the abuse.

[22] C.O. gave birth to her first child in 2010. That child was placed in foster care. C.O. has a grade 10 education and is currently unemployed.

[23] C.O. has been in a common-law relationship with N.P. since 2011. They reside together in Scarborough. J.P. is the only child of this union.

[24] C.O. has been diagnosed with epilepsy and dyslexia. She claims to have little memory of the period surrounding the offence. She attributes this to seizures that she was experiencing at the time.

[25] C.O. and N.P. currently partake in supervised access visits with J.P. which are said to be going well. They both are receiving help and are successful in maintaining a clean and healthy living environment.

[26] Dr. Benassi found C.O. to be mildly depressed. He goes on to say:

During the time of [C.O.]’s charges, it is likely that her actions and/or omissions are best understood as deriving from deficits in problem-solving and parenting skills. Based on her childhood history, it is likely that the development of appropriate life skills around maintaining a household and caring for a child were not adequately modelled to her by parental figures. She demonstrated limited awareness and appreciation of the dire state of her living environment and the child safety concerns. The additional responsibility of parenting a child may have overwhelmed her limited capacity to care for herself and others.

D. The Circumstances of N.P.

[27] N.P. was 25 years old at the time of the offence. He has a record for theft and two counts of fail to comply in 2010.

[28] A presentence report was prepared for him and there is no dispute as to the accuracy of the information provided to the probation officer, including N.P.’s self-report as reflected in that presentence report.

[29] N.P. never knew his father as an infant. N.P., from a very early age, was raised by his grandfather, who now has custody of J.P. At age 12, N.P. began living with his mother, who moved about the country with him and died at age 40. Their relationship can best be described as tumultuous. N.P. tried living with his father but that did not work out either.

[30] N.P. suffers from ADHD and only completed grade 8. He has nonetheless been fully employed over the last several years. His current employer speaks highly of him. He does not suffer from any major mental illnesses nor drug addictions, although he is a regular cannabis user.

[31] In 2018 he was diagnosed with testicular cancer which has been well managed. It is possible that he was suffering from fatigue because of that illness at the time of the offence.

[32] According to the probation officer who prepared the presentence report, N.P. denies his guilt, yet “accepts the Court’s findings”.

E. The Impact of the Offence on J.P.

[33] J.P. is now 9 years old. She is living a happy life in the custody of her great-grandparents. She is visited by her parents every other week. She does well at school, despite her inherited ADHD. It is important to note that even though the defendants put J.P. at risk by their neglect, there is no evidence that J.P. has suffered any lasting effects of this neglect.

F. The Positions of the Parties

[34] Ms. Will, for the Crown seeks a 6 -12-month conditional sentence with one year of probation.

[35] Ms. Murphy, for C.O. seeks a suspended sentence and probation.

[36] Ms. Chowdhury, for N.P. seeks an absolute discharge.

G. The Principles of Sentencing

[37] The principles of sentencing are set out in Part XXIII of the Criminal Code.

[38] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[39] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[40] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also consider several principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• 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.

[41] Even though the caselaw does make clear that denunciation and deterrence are paramount considerations in cases of child abuse, (R. v. McCauley, 2007 ONSC 1593, [2007] O.J. No. 1593 (S.C.J.)), in the case of youthful first offenders, like C.O., the Court of Appeal for Ontario has made it clear that the primary objectives in sentencing are individual deterrence and rehabilitation and that the court should explore all other dispositions before imposing a custodial sentence. A custodial sentence should only be imposed where “the circumstances are such or the offence is of such gravity that no other sentence is appropriate.” “The sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary.” R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.) at p. 377 and R. v. Priest, [1996] O.J. No. 3369 (C.A.).

H. The Aggravating Circumstances

[42] The most significant of the aggravating circumstances is that (a) the victim of this offence is a child, and (b) the defendants were in a position of trust. See s. 718.2(a).

I. The Mitigating Circumstances

[43] Both defendants were very young and impoverished, both emotionally and materially, when they committed this offence.

[44] They are the product of difficult upbringings marked by a lack of parental modeling. Both were emotionally neglected. C.O. was sexually abused. When they set out to parent J.P. neither of them knew the first thing about proper parenting. I have no doubt that they both love their child and were completely oblivious to their serious shortcomings as parents. I am also convinced that they have learned from this long difficult process. They are well known to the Children’s Aid authorities and are also well monitored by N.P.’s grandparents. I consider there to be no risk that they will ever find themselves in a position of parenting another child. As for what the future holds for their relationship with J.P., the family court will sort that out should there need to be a change in the status quo.

[45] In further mitigation is the absence of any evidence that their neglect of J.P. had any lasting consequences to her physical or mental health.

J. Analysis and Caselaw

[46] It is a well settled principle of criminal law that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. Criminal Code, s. 718.2(b); R. v. Lacasse, 2015 SCC 64 at para 2. There is, however, little sentencing jurisprudence in cases of child neglect without proof of harm, such as this case. That said, the cases make it clear that child abuse offences must be treated as serious crimes. R. v. D. (D.), [2002] O.J. No. 1061 (C.A.); R. v. Woodward, 2011 ONCA 610.

K. Should a Sentence of Imprisonment be Imposed?

[47] Before acceding to the Crown’s argument for a conditional sentence I would have to be convinced that a sentence of imprisonment, albeit in the community, should be imposed.

[48] I am not so inclined. I believe that the principle of restraint, as articulated in s. 718.2, along with the Court of Appeal’s direction in Stein and Priest dictates the imposition of a sentence that does not involve imprisonment. Notwithstanding the seriousness of their neglect of their daughter I feel that the defendants’ terrible upbringing, their youth at the time of the offence and the fact that there is no evidence that J.P. was harmed support a disposition that does not involve imprisonment. i.e., a suspended sentence and probation. Nor do I believe that the two defendants should be treated differently on sentence.

[49] I reject Ms. Chowdhury’s arguments in support of an absolute discharge for N.P. Given the seriousness of the offence, his prior criminal record and the need for denunciation and deterrence, such a disposition would clearly be against the public interest.

L. Conclusion

[50] Sentence will be suspended for both defendants. They will both serve 12 months of probation that will include counselling, on terms to be addressed in further oral submissions.

[51] Counsel can address what further terms would be appropriate regarding the probation order, and other ancillary orders.

Released on September 6, 2022 Justice Russell Silverstein