WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

CITATION: R. v. M.M., 2022 ONCJ 657

DATE: 2022-09-08

Toronto

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

M.M.

Before Justice Mara Greene

Reasons for Judgement released September 8, 2022

J. Gibson…………………………………….……………………. for the Crown

D. Gosbee………………………………………………………… for M.M.

M. Greene J.:

[1] M.M. entered a plea of guilty to one count of failing to provide the necessities of life to his daughter J.M. causing her bodily harm. M.M. seeks a conditional discharge for this offence while the Crown has argued that a conditional sentence of two years less one day is the appropriate sentence. In seeking a conditional sentence, Crown counsel argued that but for the Covid 19 pandemic, she would have been seeking a custodial sentence.

The offence and harm suffered by the victim

[2] The victim in this case is J.M., the two-year-old daughter of A.L. and M.M. The essence of the offence is that A.L. and M.M. failed to adequately feed and nourish their daughter to such a degree that by the time of state intervention, J.M. who was 26 ½ months old, weighed only 3.84 kg. This is less than 1 kg more than what she weighed when she was born. According to the medical staff working with J.M., she was so malnourished that J.M. could not walk, talk, stand or roll over. J.M. had delays in every aspect of her life and was suffering from what is referred to as a failure to thrive as a result of her chronic malnutrition.

[3] In this case, the reason that J.M.’s weight loss and physical deterioration went unnoticed was because A.L. and M.M. failed to obtain proper medical care for J.M. Had J.M. been taken to see a doctor in the months leading up to her apprehension by CAS, J.M.’s physical deterioration would have been noticed. By the time of J.M.’s apprehension on August 14, 2020, she had not seen a doctor since November 27, 2018. She was also not up to date on her immunizations.

[4] The harm suffered by the victim of this offence is startling. As noted above, J.M. weighed 3.84 kg. This is the equivalent of 8.4 pounds. Many infants weigh more than this at birth. The photographs of J.M. which were taken on the date she was admitted to hospital were presented at the sentencing hearing. They portray a very sick and emaciated child, with no fat or muscle on her. Every bone was visible and in places her limp and dehydrated skin sagged around her bones. J.M.’s skin was dry and peeling in places. To anyone even glancing at J.M., her malnutrition would have been obvious.

[5] The state became involved in this case because on August 14, 2020 M.M. telephoned telehealth Ontario about J.M. He explained that J.M. was underweight, not talking or walking. He further advised that A.L. was suffering from anxiety and depression.

[6] As a result of this communication, CAS wanted to attend at the residence immediately. M.M. convinced them to wait a few days as he wanted time to prepare A.L. for their attendance. On August 18, M.M. attempted to delay CAS’s attendance even further, but they refused.

[7] Upon the arrival of CAS, A.L. was overheard saying to M.M. “you called them you deal with them”. After 30 minutes of coaxing, A.L. agreed to let CAS come in and examine J.M. A.L. advised that J.M. had been losing weight since January, 2020.

[8] A.L. was the main care giver for J.M. While M.M. lived with J.M. and A.L., he worked long hours and was often not around to assist with caring for J.M. There were some inconsistencies in the information I received about just how often M.M. was home. In my view, I need not resolve this inconsistency, as it has been admitted that M.M. was home enough that he would see J.M. if not daily, then at least a number of times a week. This was sufficient for him to notice that J.M. was losing weight, failing to thrive and becoming increasingly unwell. He would have easily noticed that she was not meeting her milestones and was becoming increasingly unwell.

[9] Fortunately, J.M. has responded well to treatment and is now a healthy and happy four-year-old girl. I have seen photographs and videos of her with her family. At the present time J.M. appears well loved and cared for. At the present time, J.M. is living with A.L.’s mother. A.L. and M.M. have worked diligently with CAS and have significant access to J.M., seeing her daily. I am told that CAS is working towards having J.M. return to the care of M.M. and A.L.

[10] It should be clear, however, that the path here has not been easy. At the time of admission to hospital, her malnutrition was so severe that it was potentially fatal. J.M. was in hospital for 54 days. She had hypoglycemia, hypothermia, refeeding syndrome, a vitamin D deficiency, a calcium deficiency and a folate deficiency when she was admitted to hospital in August of 2020. The medical practitioners had to gradually increase J.M.’s caloric intake at first, in order to avoid making her sicker. Moreover, she could not take food orally. It had to be provided through a feeding tube for 48 days.

[11] Since her release from hospital, J.M. has completed occupational therapy and speech therapy. She attends full-day pre-school at a private place, paid for by A.L. and M.M. She also attends music classes at the Royal Conservatory. As previously noted, CAS has approved daily access for M.M. and A.L. This takes place at A.L.’s mother’s residence. M.M. has also been approved for overnight visits with J.M. as long as they are supervised by A.L.’s mother.

Circumstances of accused

[12] M.M. is presently 54 years old. M.M. was born in Trinidad and moved to Canada in 1988 when he was 19 years old. He is presently a Canadian citizen. M.M. has one sister who still resides in Trinidad. He has another sister and a brother in Canada.

[13] Upon arriving in Canada, M.M. attended Seneca College. While in school, he also worked for the CIBC as a means of paying for his education. He eventually obtained a fulltime job at CIBC and left school without completing his program. M.M. has worked up the ranks in CIBC and he continues to be employed there.

[14] M.M. got married to his first wife in 1990. They divorced in 2016. They have three children together all of whom are now adults. Two of his children completed post-secondary education and one is enrolled in the Canadian Armed Forces. I have been advised that while there has been some tension with his children around the dissolution of his first marriage, M.M. maintains a strong relationship with all three of his adult children.

[15] M.M. met A.L. at work in 2014. They started to date in late 2015. M.M. and A.L. started to cohabitate in March of 2020, approximately two months prior to the birth of J.M. J.M. is the only child that A.L. and M.M. have together. M.M.’s children from his first marriage do not have a relationship with A.L. In fact, two of his three adult children have not even met A.L. Moreover, at the time of the first sentencing date for this matter, M.M. had not yet told any of his adult children about this offence. I understand that more recently, he has now advised his adult children of this offence. One of his sons attended the last court date.

[16] A number of letters of support were filed at M.M.’s sentencing. M.M. is described as a thoughtful and caring son and brother. M.M.’s father is ill and on dialysis. M.M. is very involved in the care of his father. M.M.’s brother described M.M. as the rock in the family and together they take care of their ailing parents. M.M.’s brother also advised the court in his letter that M.M. is remorseful for his actions and is working hard to make sure that J.M. makes a full recovery.

[17] It appears from all the material provided that M.M. was a good father to his first three children, a good and helpful son and brother and a hard worker. M.M. has worked for 33 years at the CIBC. He started out as a teller and moved into senior management in corporate and commercial loans. M.M. works long hours and presently oversees 43 employees. When the pandemic hit, M.M.’s job changed significantly. He was moved from overseeing loans in Canada to working with loans in the US and the UK. This meant longer hours at work and less time at home. M.M. is very concerned that if convicted of this offence, he will lose his job. M.M. must complete an annual background check at work to maintain his employment. It is his understanding that committing a criminal offence that results in a conviction will lead to him losing his job. This will mean that he will no longer be able to afford to keep J.M. in the private school she attends or continue to pay for her music lessons with the Royal Conservatory.

[18] Since his arrest for this offence, M.M. has worked with a therapist. The focus of this therapy was to help him with parenting strategies and to teach him about childhood nutrition. M.M. filed letters from his therapist confirming his engagement with his treatment. In her letter, the therapist wrote that M.M. advised that he was rarely home and did not see J.M. on most days. This appears to be inconsistent with what I was told during the sentencing hearing from M.M. I understand from M.M., through his counsel, that M.M. did see J.M. on a regular basis. While he worked long hours, he was home at night and did see his daughter when he came home from work. M.M.’s therapist wrote that M.M. has learned a lot in therapy and has made good progress.

[19] I accept that M.M. loves J.M. and is committed to being an engaged and supportive parent to J.M. This is clear from his progress with CAS and the photographs of M.M. with his daughter filed on this sentencing hearing.

Relevant Legal Principles.

[20] In the companion case, R. v. A.L., 2022 ONCJ 656, I reviewed the relevant legal principles. I repeat my comments from R. v. A.L. here.

[21] The overarching principle in sentencing in Canada is that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which are outlined in section 718 of the Criminal Code.

[22] While the Criminal Code identifies a host of objectives that a judge must consider in assessing the appropriate sentence, how much weight a judge gives to any of the objectives is determined on a case-by-case basis. As was recently stated in R. v. Morris, 2021 ONCA 680 “The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender”. A.L. has been found guilty of an offence involving a child. Pursuant to section 718.01 of the Criminal Code, when a court imposes a sentence for an offence involving the abuse of a young person “it shall give primary consideration of the objectives of denunciation and deterrence of such conduct”. Parliament signaled by enacting 718.01 of the Criminal Code that it is prioritizing deterrence and denunciation in these cases. As was stated in R. v. Lis, 2020 ONCA 551, [2020] O.J. no. 3733 (C.A.) at paragraph 47 “By enacting s. 718.01, Parliament prioritized denunciation and deterrence for offences that involve abuse of children. The words "primary consideration" prescribes a relative ordering of sentencing objectives, a feature that does not appear in their listing in s. 718. This ordering reflects Parliament's intention that sentences "better reflect the seriousness of the offence": Friesen, at paras. 101-102”.

Aggravating and mitigating factors

[23] Pursuant to section 718.2 of the Criminal Code, a sentencing judge, in determining the appropriate sentence, must consider all the aggravating and mitigating factors. The aggravating factors in the case at bar are the same as those in R. v. A.L. They include the extreme harm done to J.M., the fact that J.M. was an infant and vulnerable, the breach of trust involved and the prolonged period of time for which M.M. failed to provide the necessities of life to J.M.

[24] There are some mitigating factors that I must also consider in this case. First of all, M.M. has entered a plea of guilty, he has taken responsibility for his actions and has insight into his criminality. M.M. has been in therapy where he is doing well, he continues to financially support J.M. and is working diligently with CAS to gain access and eventual custody of J.M. I am also mindful that most of J.M.’s more significant deterioration occurred during the pandemic where accessing resources was difficult and everyone in this country was struggling. I further note that at the time of the offence M.M. was struggling to navigate working in a new position during a complicated time (the pandemic) while also responding to A.L.’s mental illness.

[25] In assessing M.M.’s offending conduct, I am also mindful that as the non-primary care giver he was depending on A.L. to feed their child and take her to the necessary medical appointments. Having said that, upon recognizing that his daughter was losing an extreme amount of weight, not meeting her milestones and not talking or moving, he ought to have taken immediate steps to obtain medical assistance. This leads into what, in my view, is the most mitigating factor which is that while he ignored his daughter’s failing health for months, he did eventually contact telehealth Ontario to get medical advice and help for J.M. I appreciate that but for M.M. contacting telehealth and their swift and effective action, we might be in a very different place today.

Range of sentence to be considered

[26] Sentencing in Canada is a very individualized process. Having said that, pursuant to section 718 of the Criminal Code, similar sentences should be imposed for similar offences. As such, it is necessary to look at the range of sentence normally imposed for this offence. These ranges, however, are not rigid. They are “starting points and guidelines, not hard and fast rules” (see R. v. Friesen, supra, at para 37). In R. v. A.L., I reviewed in detail a number of sentencing cases involving failing to provide the necessities of life. I will not repeat this case law review here. Suffice it to say that the vast majority of cases resulted in significant jail sentences. In all cases where a child died as a result of the parental neglect, penitentiary sentences were imposed. Longer jail sentences were also imposed where there was intentional abuse in addition to parental neglect. Generally speaking, the longer the period of neglect and the greater the harm suffered by the victim, the longer the sentence. Shorter sentences, but still jail sentences, were imposed where the child suffered bodily harm and made a full recovery. In some cases where there were a host of significant mitigating factors, conditional sentences were imposed.

[27] In the case at bar, counsel for M.M. highlighted three facts that he viewed as being significant and distinguished this case from many of the others previously reviewed. Firstly, he noted that M.M. was not the primary care giver and expected A.L. to take care of J.M.’s daily needs. Secondly, while it was very late in the day, M.M. did eventually seek medical help for J.M. In R. v. Cunningham, unreported, April 8, 2021, a suspended sentence was imposed on a father that noticed bruising on his child due to his wife’s abuse of their child but failed to seek medical attention for the injuries for over two weeks. It was not until his daughter was unconscious that he took her to hospital for treatment. The sentencing judge referred to the offending conduct as an offence by omission – that is his failure to obtain medical assistance in a timely fashion.

[28] In another case, R. v. T.T., [2012] O.J. No. 3603 (SCJ), a mother (T.T.) and her boyfriend (T.W), were charged with failing to provide the necessities to T.T.’s children. Three of the four children were severely malnourished as a result of the diet that T.T. fed her children. T.T. had been told to take her children to a doctor, but she failed to do so. CAS intervened and three of her four children were hospitalized for rickets, malnutrition and osteopenia. T.W., who was not the father of the children and was not the main care giver to the children, but was living with the children at the relevant time received a conditional discharge for his role in this offence.

[29] In other cases, judges have not distinguished between the primary care giver parent and the non-primary caregiver parent. For example, in R. v. S.J., [2015] ONCA 97, a sentence of six months was imposed on both the father and mother for failing to provide the necessities of life to their three-year-old child. In deciding that a six-month sentence was appropriate for the father, the court noted that even though the father had only been around for the last month, this was still enough time for him to have noticed that the child was in urgent need of medical care such that he ought to have taken his child to the doctor. The father’s failure to act, when he knew the child was sick demanded a period of incarceration even though he was not the primary caregiver.

The Appropriate Sentence

[30] M.M. seeks a conditional discharge for his role in this offence. A discharge should only be imposed where it is in the best interest of the offender and not contrary to the public interest. There is no doubt that it is in M.M.’s best interest to obtain a discharge. I accept that if convicted he is likely to lose his job. This would be detrimental not only to M.M. but also to his whole family as he is the financial supporter of the family. There is a good chance that the extra childcare expenses they now pay for will not be financially viable if M.M. loses his job.

[31] Counsel for M.M. also argued that it would not be contrary to public interest to impose a discharge. His argument focused on the distinguishing features referenced above namely (i) the fact that he was not the primary caregiver and (ii) the fact that he did eventually obtain medical help for J.M. He also argued that the effect of the pandemic should also be considered. Counsel argued that these mitigating factors are sufficiently compelling to support the imposition of an extraordinary sentence.

[32] Many of the arguments made by counsel for M.M. were compelling and persuasive. I appreciate that it is difficult at times to reconcile imposing a sentence on the offender that has a collateral impact on the victim. This seems contrary to objective of restorative justice which is an important objective in sentencing. As I stated in R. v. O’Byrne, 2013 ONCJ 171, however, there will be cases where the objectives of deterrence and denunciation override the restorative justice objective in sentencing. This is one of those cases. To do otherwise would be to run afoul to section 718.01 of the Criminal Code.

[33] I appreciate that in an ideal world, the sentence I impose on M.M. would not put his ability to financially support his family at risk, but this, in my view, is not a basis to impose what would otherwise be a completely inappropriate sentence. This case is not like that of T.W., supra, where the non-biological father received a discharge. Firstly, the harm done to J.M. seems far more extensive than the health issues faced by the children in that case. Secondly, M.M. is the biological father of J.M. and as such had a strong duty of care to her. This case is also more aggravating than R. v. Cunningham where a suspended sentence was imposed. In Cunningham, the father delayed accessing medical care for his child for two weeks. In the case at bar, M.M. watched J.M. deteriorate over eight months before he finally contacted a medical practitioner. In my view, a conditional discharge is not an appropriate sentence. It would be contrary to the public interest to impose a discharge and it would be completely outside the range of what is appropriate in this case.

[34] In my view, the most mitigating factor in this case is that M.M. did eventually seek medical assistance for his daughter. Medical assistance that ultimately saved her life. Having said that, it is difficult to understand why he waited so long to get medical help. M.M. had already raised three children. He had to have been aware of the milestones children meet over time and what a healthy and unhealthy child looks like. By his own admission, he knew for months that J.M. was under weight, not meeting her milestones and in need of medical intervention. Given how much weight J.M. had lost, and how emaciated she was upon admission to hospital, anyone even glancing at J.M. would know medical intervention was required. I appreciate that J.M.’s physical health would not have appeared dire in January or February 2020 when M.M. first started to notice the weight loss, but at some point in time, months before he actually called telehealth Ontario, he had to have known that J.M. was in urgent need of medical help. I also appreciate that M.M. was in a difficult position, attempting to navigate the needs of his partner who was suffering from a major depressive episode while also working fulltime and helping with his daughter, but this does not absolve him from responsibility.

[35] In asking for a conditional sentence of two years less one day, Crown counsel argued that M.M.’s culpability was in the same range as A.L.’s culpability. While A.L. suffered from a major mental illness which provides a context to her actions, she was the primary care giver. M.M., on the other hand, does not have a mental illness, but as he was not primary caregiver, his offending conduct is less aggravating. As the nonprimary care giver, M.M.’s offending behaviour was his failure to get medical care for his daughter.

[36] In some respects, I find M.M’s criminal conduct more aggravating than A.L.’s conduct. M.M. had raised three children already and did so without incident. He is a well-educated, successful man who managed to navigate the stressors of his world for over fifty years. It is difficult to understand why he was unable to call a doctor or telehealth three months earlier. I suspect, M.M. cannot even answer this question himself. I do know that M.M. regrets his failure to act. I accept that he loves his daughter and wants to be part of her life. He has worked hard over the past two years to gain access to J.M. and work through the issues that caused him to be unable to care for his child. He has entered a plea of guilty to this offence knowing that there is a real risk that he will lose his job. I have seen the photos of M.M. with J.M. and do not doubt that he cares deeply for his daughter.

[37] In determining the appropriate sentence in this case I am also mindful that in addition to the sentence I impose, M.M. will suffer additional consequences. He will likely lose his job. Moreover, obtaining a new job in his chosen field will be difficult, as he works in finance. A criminal record will have a significant impact on his ability to maintain his present job and obtain a new job. Ultimately, I agree with the Crown that M.M.’s sentence should be similar to A.L.’s sentence, albeit in my view it should be slightly lower. A sentence in the range of eight to ten months conditional sentence would be appropriate. Using the lower end of this range, I impose an eight month conditional sentence followed by 18 months of probation addresses the key objectives of deterrence and denunciation and adequately takes into account the aggravating and mitigating factors. The exact conditions of the conditional sentence and the probation will be addressed in court.

Released September 8, 2022