ONTARIO COURT OF JUSTICE DATE: MAY 17, 2024

Court File and Parties

Court File No.: Ontario Court of Justice

BETWEEN: HIS MAJESTY THE KING — AND — MOHAMED BELKHIER

Before: Justice Angela L. McLeod

Preliminary hearing: June 13, 14, 16, 21, 23, 2023. Plea and sentencing hearing: May 6, 2024.

Counsel: Sara Sullivan, counsel for the Crown Martin Montes, counsel for the Defendant

McLeod J.:

Overview

[1] A five-day preliminary inquiry was held in June 2023. Counsel submitted written submissions on committal in September 2023 and this court committed Mr. Belkhier to stand trial in December 2023.

[2] Mr. Belkhier was committed to stand trial on one count of aggravated assault (the second count on the information was criminal negligence and was not preliminary hearing eligible). The offences were alleged to have occurred in November 2021.

[3] Mr. Belkhier’s matter went up to the Superior Court of Justice, had a judicial pretrial and then with Crown consent, he re-elected to be tried in the Ontario Court of Justice.

[4] The parties requested to have the matter brought back before me, as the preliminary hearing jurist, to resolve. A replacement information was laid alleging assault simpliciter and failing to provide the necessities of life. An additional information was brought forward for a global resolution.

[5] The parties presented a joint submission on sentence.

Agreed Statement of Facts

[6] The parties filed, as Exhibit #1, an agreed statement of facts, replicated below:

1. At the time of the events that caused Scarlett’s injuries, Scarlett’s mother, Erin Phillips, was dating Mr. Belkhier. He did not formally live at the family residence but stayed over night regularly, sleeping on the couch due to a bad back.

2. Ms. Phillips has two other daughter’s, Lily who was 7 years old at the time and Patricia (also known as Annie) who was 20 years old at the time. Scarlett was left in the care of Annie while Ms. Phillips and Mr. Belkhier went to Costco. Scarlett was healthy, was given a bath and ultimately put to bed. When the family returned from Costco, Scarlett was awake and was placed in her swing. She was returned to her bed thereafter.

3. Ms. Phillips went to bed between 12:30am and 1am – it was a Friday night. Both Ms. Phillips and Mr. Belkhier consumed wine throughout the evening. Mr. Belkhier was very good to Ms. Phillips and the girls and was helpful and supportive. He was loving and attentive to Scarlett. He would assist with her feeding and changing.

4. Saturday morning Scarlett was making an odd sound. She vomited. She was sleepy and was spitting up her food. Mr. Belkhier had left the residence to go to work. Ms. Philips asked him to return. He arrived around 7:00am.

5. Throughout Saturday, Scarlett ate and vomited. Ms. Phillips asked Mr. Belkhier if he had seen anything that might account for Scarlett’s health situation. He advised that he had not seen nor heard anything. Sunday morning, Ms. Phillips noticed a significant change. Scarlett was not using one side of her body; her limbs were not moving. She was taken to the local hospital and then transferred via Air Ornge to Sick Kids Hospital in Toronto. Scarlett had repeated, extended seizures at the hospital.

6. While at the hospital Ms. Phillips asked Mr. Belkhier via text if he had dropped Scarlett. The doctors at the hospital had advised her that Scarlett was suffering from a brain injury. Mr. Belkhier text that it was an accident. She asked him how high she fell from, and he told her from the height of his arms.

7. Mr. Belkhier had been reckless in his handling of Scarlett at one point in the overnight hours of Friday into Saturday, witnessed in part by Lily Phillips, age 7. Lily saw Mr. Belkhier carrying Scarlett in a ‘wobbly’ fashion over his shoulder, with her unsupported, and in direct line with the door frame to the bathroom.

8. Lily saw Scarlett fall because she struck the door frame, and Mr. Belkhier attempted to then console Scarlett in the bathroom after the fall. As Scarlett’s condition progressively worsened, it is acknowledged that Mr. Belkhier was under a duty of care to alert Erin Phillips and to get medical attention for Scarlett immediately given the circumstances regarding the application of force.

[7] Mr. Belkhier’s plea of guilt was to the offence of assault simpliciter. The mens rea for which requires an intentional application of force. The intentional application of force herein was the picking up of the child and carrying her which resulted in her striking the door jam. Recklessness is not a component of the mens rea for assault simpliciter as it is for aggravated assault. See R. v. Deakin, 1974 MBCA 1464, 1974 M.J. No. 8. and R. v. D.(M.), 2010 BCCA 162, para. 29.

[8] Additionally, Mr. Belkhier plead guilty to one count of refusing a breath demand, (November 2022), impaired operation (August 2023), and assaulting a peace officer (November 2023).

[9] The salient facts underlying those pleas are as follows:

(1) Mr. Belkhier was on release for the aggravated assault et al charges in November 2022. (2) He was stopped for speeding. Presented with an odour of alcohol on his breath. Complied with an ASD demand and failed. Refused to comply with a breath demand. Was hostile and uncooperative with police stating, “I will not be doing anything, take me to jail.” (3) Mr. Belkhier was on release for the aggravated assault et al charges, as well as the refuse breath demand in August 2023. (4) He was involved in a single motor vehicle collision and ran from the vehicle. (5) Alcohol containers were located in his vehicle. (6) He was argumentative with police, kicked property at the detachment, head butted both the walls and floor area while in custody. He refused to comply with a breath demand. (7) Mr. Belkhier was on release for the aggravated assault et al charges, the refused to comply with a breath demand, and the impaired operation in November 2023. (8) He was located exiting someone’s garage. The homeowner had called police. He was arrested for break and enter. Once at the cruiser, he pulled away from the officer and kicked him in the middle of the chest. He continued to be uncooperative with police thereafter.

Analysis

A. Facts to Consider on Sentencing

[10] The parties presented an agreed statement of facts to support the pleas of guilt for assault and failure to provide the necessities of life. At the sentencing hearing I asked counsel if I was limited to those facts or as the jurist who had presided over the preliminary inquiry, was I able to draw from that evidence. Crown counsel submitted that the court was able to consider the evidence of the preliminary inquiry. Mr. Belkhier’s counsel initially opposed this consideration but eventually agreed with the Crown position.

[11] After some consideration of the issue, I have determined that I am not able to consider the evidence of the preliminary inquiry in determining the appropriateness of the sentence. I am bound by the agreed statement of facts and limited to those facts only.

[12] The following cases both guide and govern this court in that determination (emphasis added):

• R. v. Windross, 1992, 15 W.C.B. (2d) 232, Manitoba Provincial Court, para. 13 (emphasis added):

  The facts were accepted because there was no dispute with respect to their. However, I do think that an observation ought to be made with respect to proceeding by way of an agreed statement of facts. The observation is that by proceeding by an agreed statement of facts, the Court is limited. The Court is limited to only those facts which have come in by way of an agreement. In this case, the Court has no evidence with respect to the rifle, other than as stated in the agreed statement of facts. However, the Court does not know the range of the bullets from that rifle. The Court does not know if there were residences or people within the range of the rifle at the time. The Court does not know if Mr. Windross saw the trucks or saw the officers. Because these offences are being proceeded with by way of summary conviction procedures, any doubt arising from the limitations in the statement of facts must, as a matter of law, be resolved in favour of the accused.

• R. v. Boyde, 2016 NLTD(G) 111, para. 18:

  In making this determination, the question of whether the sentence is unreasonable must be considered. This requires an assessment of the facts as presented to the court, normally in the form of an agreed statement. Counsel must provide sufficient facts to permit the sentencing judge to determine whether the sentence is reasonable in the circumstances. The court is bound by the agreed statement of facts; the sentencing judge cannot "find" additional facts. As well, any inferences the judge may draw must follow clearly from what is set out in the agreed statement. It is preferable that counsel provide a factual basis for the judge to assess the proposed sentence that does not require the judge to draw factual inferences.

• R. v. Bayani, 2011 ONSC 5225, para 139:

  On the other hand, where the parties put before the court an agreed statement of facts, both the parties and the court are bound by those facts and may not depart from them: R. v. Olderskog (2010) ABQB 744 (Alta. Q.B.), para. 8, citing Chenier v. Stephens (2000), 98 A.C.W.S. (3d) 448, [2000] O.J. No. 2721 (Ont. S.C.J.), para. 11; Enoch Band of the Stony Plain Indians v. R. (1998), 222 N.R. 218 (Fed. C.A.), at para. 5; R. v. Lamothe, [2005] O.J. No. 5714 (Ont. S.C.J.) para. 23. It is this latter position, Mr. Bloomenfeld asserts, in which the Crown finds itself.

B. Aggravating and Mitigating Factors

[13] I find the following factors to be aggravating on sentence:

(1) The victim was a vulnerable, five-month-old infant. (2) The infant suffered a potentially life-threatening brain injury as a result of the assault. (3) The infant suffered for several days before Mr. Belkhier shared the information about the child’s fall. (4) Mr. Belkhier’s actions in delaying the reporting of information to medical authorities was not a momentary lack of judgement or a transient act, it was prolonged and subject to several direct inquiries about his knowledge of what might have happened to the infant. (5) Mr. Belkhier was in a position of trust at the time of the assault. (6) Mr. Belkhier was on release and breached multiple release orders for the 2022 and 2023 offences. (7) Mr. Belkhier was uncooperative and combative with police during his arrests in 2022 and 2023. (8) Mr. Belkhier was involved in a single motor vehicle collision.

[14] I find the following factors to be mitigating on sentence:

(1) The plea of guilt for assault and failure to provide the necessities of life: (a) Which is increased by the Crown’s acknowledgment of triable issues. (b) Which is lessened because it is ‘late in the day’ and post preliminary inquiry which required the infant’s mother and two sisters (one of whom was just 10 years of age) to testify as well as the medical expert. (2) The plea of guilt for the 2022 and 2023 offences: (a) Which is lessened because they are ‘late in the day’. (3) Mr. Belkhier completed a 13-page workbook while in custody in the independent Educational Session “Substance Use”. (4) Prior to his final arrest in November 2023, Mr. Belkhier was gainfully employed on a regular basis. (5) Mr. Belkhier does not have any prior criminal convictions.

[15] I find the following factors to be neutral on sentence:

(1) The infant, according to her mother’s victim impact statement, has recovered from her injuries. (2) The infant’s mother remains supportive of Mr. Belkhier.

C. Sentencing Principles

[16] The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) deterring the offender and others from committing crimes; (c) separating offenders from society where necessary; (d) assisting in the rehabilitation of the offender; (e) providing reparations for harm done to the victim or to the community; (f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

[17] The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

D. Joint Submissions

[18] In R. v. Anthony-Cook, 2016 SCC 43, the Supreme Court addressed the issue of joint submissions and provided guidance to sentencing jurists. From that decision, I highlight the following:

25 It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty. Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them (Criminal Code, R.S.C. 1985, c. C-46, s. 606(1.1)(b)(iii)). In such cases, trial judges need a test against which to measure the acceptability of the joint submission. The question is: What test?

29 The third test, commonly referred to as the "public interest" test, was developed in the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (1993) (the "Martin Committee Report"). Under this test, trial judges "should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the “public interest" (p. 327 (emphasis deleted)). This test has also been adopted by a number of provincial appellate courts (see, for example, R. v. Dorsey (1999), 123 O.A.C. 342 (Ont. C.A.), at para. 11; R. v. Druken, 2006 NLCA 67, 261 Nfld. & P.E.I.R. 271 (N.L. C.A.), at para. 29; R. v. Nome, 2002 BCCA 468, 172 B.C.A.C. 183 (B.C. C.A.), at paras. 13-14). The appellant supports this test, largely because it provides "a high threshold and is intended to foster confidence in an accused, who has given up his right to a trial, that the joint submission he obtained in return for a plea of guilty will be respected by the sentencing judge" (R. v. Cerasuolo (2001), 151 C.C.C. (3d) 445 (Ont. C.A.), at para. 8).

31 Having considered the various options, I believe that the public interest test, as amplified in these reasons, is the proper test. It is more stringent than the other tests proposed and it best reflects the many benefits that joint submissions bring to the criminal justice system and the corresponding need for a high degree of certainty in them. Moreover, it is distinct from the "fitness" tests used by trial judges and appellate courts in conventional sentencing hearings and, in that sense, helps to keep trial judges focused on the unique considerations that apply when assessing the acceptability of a joint submission. To the extent Verdi-Douglas holds otherwise, I am respectfully of the view that it is wrongly decided and should not be followed.

32 Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what does this threshold mean? Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard.

33 In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system". And, as stated by the same court in R. v. O. (B.J.), 2010 NLCA 19, at para. 56, when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts".

34 In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason, as I shall explain.

42 Hence, the importance of trial judges exhibiting restraint, rejecting joint submissions only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system. A lower threshold than this would cast the efficacy of resolution agreements into too great a degree of uncertainty. The public interest test ensures that these resolution agreements are afforded a high degree of certainty.

43 At the same time, this test also recognizes that certainty of outcome is not "the ultimate goal of the sentencing process. Certainty must yield where the harm caused by accepting the joint submission is beyond the value gained by promoting certainty of result" (R. v. DeSousa, 2012 ONCA 254, 109 O.R. (3d) 792 (Ont. C.A.), per Doherty J.A., at para. 22).

49 Finally, I would offer some brief guidance to trial judges on the approach they should follow when they are troubled by a joint submission on sentence.

50 Courts across the country are generally in agreement on the procedure judges should follow when they are inclined to depart from a joint submission (see, for example, O. (B.J.), at paras. 74-82; R. v. Sinclair (2003), 2004 MBCA 48, 185 C.C.C. (3d) 569 (Man. C.A.), at para. 17; C. (G.W.), at para. 26). The parties and interveners emphasize the importance of procedure. It ensures that joint submissions are given proper consideration, and that accused persons — who have already entered a plea of guilty — are treated fairly. The following procedures reflect practical wisdom gained from the experience of our trial and appellate courts. They are meant to apply only to those cases where the joint submission is contentious and raises concerns with the trial judge. As I mentioned earlier, most joint submissions are unexceptional and are readily approved by trial judges without any difficulty.

51 First, trial judges should approach the joint submission on an "as-is" basis. That is to say, the public interest test applies whether the judge is considering varying the proposed sentence or adding something to it that the parties have not mentioned, for example, a probation order. If the parties have not asked for a particular order, the trial judge should assume that it was considered and excluded from the joint submission. However, if counsel have neglected to include a mandatory order, the judge should not hesitate to inform counsel. The need for certainty in joint submissions cannot justify failing to impose a mandatory order.

52 Second, trial judges should apply the public interest test when they are considering "jumping" or "undercutting" a joint submission (DeSousa, per Doherty J.A.). That is not to say that the analysis will be the same in either case. On the contrary, from the accused's perspective, "undercutting" does not engage concerns about fair trial rights or undermine confidence in the certainty of plea negotiations. In addition, in assessing whether the severity of a joint submission would offend the public interest, trial judges should be mindful of the power imbalance that may exist between the Crown and defence, particularly where the accused is self-represented or in custody at the time of sentencing. These factors may temper the public interest in certainty and justify "undercutting" in limited circumstances. At the same time, where the trial judge is considering "undercutting", he or she should bear in mind that the community's confidence in the administration of justice may suffer if an accused enjoys the benefits of a joint submission without having to serve the agreed-upon sentence (see DeSousa, at paras. 23-24).

53 Third, when faced with a contentious joint submission, trial judges will undoubtedly want to know about the circumstances leading to the joint submission — and in particular, any benefits obtained by the Crown or concessions made by the accused. The greater the benefits obtained by the Crown, and the more concessions made by the accused, the more likely it is that the trial judge should accept the joint submission, even though it may appear to be unduly lenient. For example, if the joint submission is the product of an agreement by the accused to assist the Crown or police, or an evidentiary weakness in the Crown's case, a very lenient sentence might not be contrary to the public interest. On the other hand, if the joint submission resulted only from the accused's realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system.

54 Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence, and the joint submission without waiting for a specific request from the trial judge. As trial judges are obliged to depart only rarely from joint submissions, there is a "corollary obligation upon counsel" to ensure that they "amply justify their position on the facts of the case as presented in open court" (Martin Committee Report, at p. 329). Sentencing — including sentencing based on a joint submission — cannot be done in the dark. The Crown and the defence must "provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence", in order to give the judge "a proper basis upon which to determine whether [the joint submission] should be accepted" (DeSousa, at para. 15; see also Sinclair, at para. 14).

55 This is not to say that counsel must inform the trial judge of "their negotiating positions or the substance of their discussions leading to the agreement" (R. v. Tkachuk, 2001 ABCA 243, 293 A.R. 171 (Alta. C.A.), at para. 34). But counsel must be able to inform the trial judge why the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest. If they do not, they run the risk that the trial judge will reject the joint submission.

56 There may, of course, be cases where it is not possible to put the main considerations underlying a joint submission on the public record because of safety or privacy concerns, or the risk of jeopardizing ongoing criminal investigations (see Martin Committee Report, at p. 317). In such cases, counsel must find alternative means of communicating these considerations to the trial judge in order to ensure that the judge is apprised of the relevant considerations and that a proper record is created for appeal purposes.

57 A thorough justification of the joint submission also has an important public perception component. Unless counsel put the considerations underlying the joint submission on the record, "though justice may be done, it may not have the appearance of being done; the public may suspect, rightly or wrongly, that an impropriety has occurred" (C. C. Ruby, G. J. Chan and N. R. Hasan, Sentencing (8th ed. 2012), at p. 73).

58 Fourth, if the trial judge is not satisfied with the sentence proposed by counsel, "fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the ... judge's concerns before the sentence is imposed" (C. (G.W.), at para. 26). The judge should notify counsel that he or she has concerns, and invite further submissions on those concerns, including the possibility of allowing the accused to withdraw his or her guilty plea, as the trial judge did in this case.

59 Fifth, if the trial judge's concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea. The circumstances in which a plea may be withdrawn need not be settled here. However, by way of example, withdrawal may be permitted where counsel have made a fundamental error about the legality of the proposed joint submission, for example, where a conditional sentence has been proposed but is unavailable.

60 Finally, trial judges who remain unsatisfied by counsel's submissions should provide clear and cogent reasons for departing from the joint submission. These reasons will help explain to the parties why the proposed sentence was unacceptable and may assist them in the resolution of future cases. Reasons will also facilitate appellate review.

E. Failure to Provide the Necessities of Life Sentencing Range

[19] In R. v. J.S., 2015 ONCA 97, the court wrote:

47 The offence of failing to provide necessaries of life first appeared in 1892 in the first Criminal Code. English 19th century legislation dealing with the protection of servants, apprentices, and inmates of penal and other institutions was the likely origin of s. 215: R. v. Peterson, 2005 34 C.R. (6th) 120(Ont. C.A.), leave to appeal to S.C.C. refused, (2006), [2005] S.C.C.A. No. 539 (S.C.C.), at para. 65 (Borins J.A. dissenting on sentence). Although the language has changed somewhat since 1892, the core of the legislation remains the same: where a person is in the charge of another, and unable to withdraw himself from that charge and to provide himself with the necessaries of life, the person having charge has a duty to provide necessaries of life: Peterson, at para. 65. Certain relationships and legal duties are described in s. 215. As noted in R. v. H. (A.D.), 2013 SCC 28, [2013] 2 S.C.R. 269 (S.C.C.), at para. 67, the essence of the s. 215 offence is the imposition of legal duties arising out of defined relationships.

48 Where such a duty arises, a uniform minimum level of care is prescribed. In R. v. Naglik, [1993] 3 S.C.R. 122 (S.C.C.), at pp. 141-142, Lamer C.J.C. considered the standard of care reflected in s. 215:

The accused's conduct in a particular circumstance is to be determined on an objective, or community, standard. The concept of a duty indicates a societal minimum which has been established for conduct: as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities. Therefore, the conduct of the accused should be measured against an objective, societal standard to give effect to the concept of "duty" employed by Parliament.

Section 215 is aimed at establishing a uniform minimum level of care to be provided for those to whom it applies, and this can only be achieved if those under the duty are held to a societal, rather than a personal, standard of conduct. While the section does not purport to prescribe parenting or care-giving techniques, it does serve to set the floor for the provision of necessaries, at the level indicated by, for example, the circumstances described in subs. (2)(a)(ii). The effects of a negligent failure to perform the duty will be as serious as an intentional refusal to perform the duty.

50 The scope of the term "necessaries of life" has been considered several times in the case law. As far back as 1902, in R. v. Brooks (1902), 9 B.C.R. 13 (B.C. C.A.), at p. 18, the British Columbia Court of Appeal held that "necessaries of life" meant such necessaries as tended to preserve life. In 1912, in R. v. Sidney 1912 21 W.L.R. 853(Sask. S.C. en banc), at p. 857-858, the Saskatchewan Supreme Court confirmed the holding in Brooks, noting that necessaries of life had been held to include "food, clothing, shelter, and medical attendance" and observed that this was not an exhaustive test. Further, necessaries of life are to be determined on a case by case basis. Other cases touching on the ambit of necessaries of life include: R. v. Hariczuk, [1999] O.J. No. 1424(Ont. C.J.); R. v. Morris (1981), 61 C.C.C. (2d) 163 (Alta. Q.B.); R. v. Pertab200427 C.R. (6th) 126(Ont. S.C.J.); and R. v. Popen (1981), 60 C.C.C. (2d) 232 (Ont. C.A.). In this last decision, Martin J.A. wrote, at p. 240:

We are disposed to think that the words "necessaries of life" in section 197 [now s. 215] may be wide enough to include not only food, shelter, care, and medical attention necessary to sustain life, but also necessary protection of a child from harm.

51 More recently, in 2005, in Peterson, at para. 34, this court adopted the Popen holding.

52 The appellants concede that medical attention is a necessary of life within the meaning of s. 215(1) of the Code.

105 The trial judge did consider a conditional, however, he was of the view that denunciation required that the sentence show society's disapproval of the offenders' conduct: R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.), and, more particularly, society's response to child neglect: R. v. Turner (1995), 165 N.B.R. (2d) 11 (N.B. Q.B.), aff'd (1997), 185 N.B.R. (2d) 190 (N.B. C.A.), leave to appeal to S.C.C. refused, (1998), [1997] S.C.C.A. No. 532 (S.C.C.).

[20] In R. v. R.F.S. 2021 NBPC 14, the Court wrote:

44 Two passages from the cases presented are worthy of repeating and I adopt their sentiments. First at paragraph 34 of R. v. J. (G.S) Judge Ferguson writes:

The importance of sedulously preserving, promoting and protecting the traditional relationship between a dependent child and parent cannot be overstated. It is the most important social bond that we share in a civilized society, the result of which is a trust of the highest order. Its importance is never higher than when a very young child such as D.J., who was at five years of age at the time, is involved. At such a young age the child's dependency upon her parents is virtually complete whether it is viewed from the physical, economic, social or psychological standpoint. A breach of trust by a parent or parents in failing to carry out any of the fundamental legal duties owed a young child in such circumstances is especially serious.

45 Judge Ferguson also quoted the Ontario Court of Appeal in R. v Peterson, 13 where the Court noted the need for denunciation and deterrence in cases like this. They wrote at paragraph 55:

The abuse in this case took place in a domestic setting, a setting in which the lack of food and dangerously unhygienic conditions that Arnold lived in were unlikely to be seen. The difficulty of detection of such crime and the importance of discouraging such crime are considerations that increase the gravity of the offence. By analogy, s. 718.2(a)(ii) makes the abuse of a spouse, common law partner, or child an aggravating circumstance in sentencing. The section does not except the failure to provide necessaries of life under s. 215 from its ambit.

46 The crimes here touch at the very heart of the social bond about which Judge (now Justice) Ferguson wrote. They are a repudiation and severing of that bond and a violation of the enormous trust relationship between parent and child. Denunciation and deterrence are indeed paramount here.

[21] The case of R. v. McCauley, [2007] O.J. No 1593 SCJ, which dealt with different offences and factors, is nonetheless helpful when considering the appropriate sentence in a case involving an infant victim. Justice Hill wrote:

28 By way of an overview and non-exclusive list only, certain principles have emerged in sentencing cases involving shaken baby syndrome and related child abuse:

(1) "[T]he law must protect children and those who are defenceless from unwarranted bodily interference": R. v. E.(A.), at 461; R. v. Cooper, [1985] O.J. No. 138 (Ont. C.A.) at 2-3; R. v. Cudmore (1972), 5 C.C.C. (2d) 536 (Ont. C.A.) at 538. (2) Denunciation and deterrence are the paramount sentencing considerations in child abuse sentencing: R. v. Costello, [2003] B.C.J. No. 1768 (B.C. C.A.) [hereinafter R. v. S.E.C.] at para. 16. (3) While the appropriate sentence must depend on the particular facts in each case, a contested "typical case" of shaken baby syndrome may attract a sentence of 3 to 5 years' imprisonment although "the range must extend to accommodate the rare or exceptional case": R. v. Habib (2000), 147 C.C.C. (3d) 555 (Ont. C.A.) at 561. (4) Although the objectives of denunciation and deterrence are particularly pressing in child abuse cases "with the result that incarceration would generally be preferred" (R. v. Ewen (2000), 2000 SKCA 36, 144 C.C.C. (3d) 277 (Sask. C.A.) at 286; R. v. O'Brien, 2000 BCCA 199, [2000] B.C.J. No. 669 (B.C. C.A.) at para. 7-10), a conditional sentence may be imposed where special mitigating circumstances exist: R. v. Habib, at 561-2; R. v. Carle, [2001] B.C.J. No. 1797 (B.C. C.A.) at para. 9-11. (5) "Parents...cannot escape all responsibility for their actions simply by relying on their own problems": R. v. Turner, [2001] E.W.J. No. 2494 (Eng. C.A.) at para. 17. (6) Offenders with low intellectual ability or poor anger control who shake a child in frustration cannot, on that account alone, escape incarceration (R. v. H. (J.), [1999] E.W.J. No. 5454 (Eng. C.A.) at para. 8, 16) although frustration by an unskilled and immature parent is a far cry from the deliberate infliction of harm: R. v. Marks (1994), 91 C.C.C. (3d) 421 (Nfld. C.A.) at 430. (7) Evidence of a pattern of abuse is an aggravating factor: R. v. S.E.C., at para. 14,18. (8) Permanent injury to the child increases the seriousness of the crime: R. v. Bighead, [2003] S.J. No. 335 (Sask. C.A.) at para. 12-4; P. (C.), Re, [2006] EWCA Crim 3019 (Eng. C.A.) at para. 7. (9) Summoning medical assistance promptly for the injured child tends to mitigate the severity of the circumstances: R. v. Habib, at 561; R. v. H. (J.), at para. 14; R. v. Y., [1998] E.W.J. No. 2542 (Eng. C.A.) at para. 8, 10-11. (10) Post arrest acknowledgement of anger control problems and voluntary steps toward addressing control measures can serve to temper the sentence to be imposed: P. (C.), Re, at para. 8, 11; R. v. Carle, at para. 10; R. v. Wigley, 2005 ABCA 295, [2005] A.J. No. 1191 (Alta. C.A.) at para. 3; R. v. Baldwin, [2002] N.S.J. No. 211 (N.S. S.C.) at para. 4-5, 11-12, 43 (22-yr.-old offender with ADD taking no steps in 2 1/2 yr. to assist in controlling his emotions). (11) As with most crimes, remorse of the offender, contributes to mitigation of sentence.

[22] Herein the Crown proceeded by way of summary conviction. The maximum penalty is two years less one day.

[23] In R. v. Burningham, 2023 ONSC 5992, Justice Himel wrote (emphasis added):

30 It is to be noted that Parliament had raised the sentence for an offence under this section from two to five years. As discussed above, in R. v. Lis, the Court of Appeal explained the effect of s. 718.01 of the Criminal Code which states as follows: "When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct." The court wrote in Lis at para at para. 47:

[47] By enacting s. 718.01, Parliament prioritized denunciation and deterrence for offences that involve abuse of children. The words "primary consideration" prescribe 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 ...”

[48] [...] Section 718.01 confines the sentencing judge's discretion from elevating other sentencing objectives to an equal or higher priority. However, the sentencing judge retains the discretion to assign significant weight to other factors, such as rehabilitation, in giving effect to the fundamental principle of proportionality ...

31 Further, at para. 49, the court explained the effect of an increase in the maximum sentence for failure to provide necessaries:

Maximum sentences determine the objective gravity of an offence by indicating its relative severity. Parliament's decision to increase the maximum sentence for a crime demonstrates its intention that the offence be punished more harshly. This shifts the distribution of proportionate sentences for the offence ... To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than those imposed in cases that preceded the increase in the maximum sentence: Friesen at para. 100.

34 In R. v. J. (S.), 2015 ONCA 97, 124 O.R. (3d) 595, the Court of Appeal for Ontario dealt with a case where the appellant mother and the appellant father were convicted of failing to provide the necessaries of life to their three-year-old child, H. The trial judge found that H. had been in "necessitous circumstances" within the meaning of s. 215(2)(a)(i) of the Code and that the appellants' failure to provide medical attention reflected a marked departure from what a reasonable parent would have done in the circumstances. The trial judge sentenced each of the appellants to six months' imprisonment. The Crown had sought sentences of three years' incarceration and the defence had sought suspended sentences or, alternatively, four to six months conditional sentences for each of the appellants.

35 While the appellant argued that the sentence was manifestly unfit, the Court of Appeal dismissed the sentence appeal. The court explained that the trial judge considered the appropriate range of sentence to be four to eight months custody and that he considered a conditional sentence but rejected it on the basis that it was inappropriate. The court held that the trial judge made no error in principle, nor was the sentence manifestly unfit.

36 In R. v. C.O., 2022 ONCJ 409, the Ontario Court of Justice dealt with a sentencing of two defendants, each charged with failing to provide the necessaries of life to J.P., contrary to s. 215(2)(a)(i) of the Criminal Code.

37 The circumstances of the offence were that while J. was not malnourished, ill or had been physically abused, the defendants had an apartment with extremely unsanitary conditions containing garbage, feces, urine and flies everywhere. However, they both ultimately acknowledged in their statements that they were responsible for letting matters get so out of hand. They were extremely poor and had difficulty making ends meet and putting food on the table. Fortunately, the child was nine years old at the time of sentence and living a happy life in the custody of her great-grandparents. Her parents were visiting her every other week, she was doing well in school despite her ADHD. The court wrote that that even though the defendants put J.P. at risk by their neglect, there was no evidence that J.P. has suffered any lasting effects of this neglect.

38 The Crown sought a 6-to-12-month conditional sentence with one year of probation, and the defence sought a suspended sentence and probation, and an absolute discharge, respectively.

39 At paras. 47-48 the court stated: "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. I am not so inclined." The court suspended sentence for both defendants and ordered 12 months of probation with terms that included counselling.

40 In R. v. E.W., 2019 ONCJ 788, the Ontario Court of Justice dealt with a case where a 31-year-old mother left her three-year-old and 18-month-old children in the bathtub. She was in another room engaged in an eleven-minute Facebook conversation. The 18-month-old child drowned. The Crown sought a 9-month jail sentence. The defence requested a 4-month conditional sentence or house arrest. The court considered that the mother was extensively involved in programs and treatment during the business week and that if she served a jail sentence which exceeded three months, she would have to discontinue these programs. The court held that to achieve balance between denunciation and general deterrence and rehabilitation, it imposed a sentence of 90 days jail to be served intermittently followed by a 24-month probation order.

41 In R. v. D. (S.), 2017 ONSC 591, following a trial, Maranger J. sentenced the mother in respect of a conviction for failing to provide the necessaries of life and a count of assault with a weapon.

42 The circumstances of the offence were outlined as follows, at para. 4:

[...] What happened to the victim was outrageous. An 11-year-old boy, beginning in the late summer or early fall of 2012 through to mid-February 2013, was at various times shackled and chained to a post in the basement of the family home, naked, starved, tortured with a barbecue lighter (including burning his genitals), and beaten. It was the father who tortured, beat, and starved the child. The mother stood idly by when she clearly should have done something to stop what was happening. Her crimes in this case were crimes of omission.

43 The Crown sought the maximum penalty of five years' imprisonment for the offence of failing to provide the necessaries of life, together with a four to six months consecutive sentence for the assault with a weapon charge. The defence argued that a sentence of 16 months' imprisonment for the failure to provide the necessaries of life and 30 days' imprisonment for the assault with a weapon to be served concurrently followed by 12 months' probation was appropriate.

44 The court outlined at para. 27 that, in terms of mitigation, "there was also evidence called at trial, much of it coming directly from A.J.D., that suggested from time to time the mother intervened and tried to placate the enraged father, or where she demonstrated some compassion towards A.J. by allowing a hot shower, or some more food."

45 In reviewing the jurisprudence for sentencing this type of offence, the court wrote at paras. 33-36 that the range of penalty for a conviction of failing to provide the necessaries of life under section 215 varies widely with the maximum penalty being five years' imprisonment and that the Crown did not provide a case under section 215 which held that the maximum period of incarceration had been imposed. The court noted that the defence provided cases with sentences ranging from six months to three years. The court referenced a case of R. v. S. (A.), 2016 ONSC 5599 (Ont. S.C.J.), where a mother was sentenced to three years in prison for failing to take measures to protect her nine-year-old daughter who was being viciously sexually assaulted by her boyfriend over an extended period of time (almost a year).

46 The court also noted that defence counsel had cited the decision of R. v. P. (A.), 2013 ONSC 6393 (Ont. S.C.J.), where a sentence of 12 months in prison was imposed in a case where a four-year-old child was barricaded in his room for several months without human interaction, without being bathed and only fed once a day. The mother in that case functioned at a low intellectual level.

47 The court held that the imposition of the maximum penalty would involve a case where there was "a virtual absence of remorse and other mitigating factors" (at para. 39) and that the appropriate sentence was three years' imprisonment for fail to provide necessaries and 60 days for the assault with a weapon to be served concurrently.

48 Finally, in R. v. Davy, 2015 CarswellOnt 2799 (S.C.), the court dealt with a sentencing of two accused convicted of failing to provide the necessaries of life to the mother of one of the accused (Ms. Davy). The circumstances of the offence were that the victim was living with her daughter and husband as she suffered from severe dementia and had other serious medical conditions. The court wrote as follows at para. 5:

a. [5] On May 26th, 2011, the paramedics and O.P.P. received a call to attend 12 Lankin Boulevard, unit 19 to assist an elderly person, namely, Viola Simonds. What the first responders found upon attending that call has remained indelibly imprinted on their memories. The overpowering smell of cat urine. The presence of filth and feces. The place in complete squalor. The condition of the premises was described by the attending O.P.P. Sergeant as amongst the worst he had ever seen in over 30 years of his career as a police officer. This was only a prelude to what they were to find when they went upstairs to Ms. Simonds' bedroom. There, they found Ms. Simonds naked on a bare mattress in a room with blacked out windows, covered in her own vomit and in a filthy condition. The O.P.P. Sergeant described by Ms. Simonds' emaciated appearance. She appeared "like a skeleton covered with skin". There was no muscle tone whatever. Her appearance reminded of him of a "World War II concentration camp survivor".

49 The Crown sought a custodial sentence for Ms. Davy and Mr. Davy followed by two years of probation. Counsel for Mr. Davy sought a conditional sentence of imprisonment to be served in the community in the range of six to ten months followed by a period of probation for three years. Counsel for Ms. Davy argued that she had no criminal record and a lengthy period of incarceration would not be appropriate.

50 The court imposed the same sentence for each accused: 12 months in jail on the count of failure to provide the necessaries of life and thereby causing or likely caus[ing] permanent injury to the health of Viola Simonds, and 12 months in jail to be served concurrent to count 1 in respect of the failure to provide the necessaries of life and thereby endangering the life of Viola Simonds, followed by a two year term of probation.

51 As for the offence of failure to provide necessaries contrary to s. 215, there is no statutory bar to the availability of a conditional sentence. Provided that the court is satisfied that the circumstances are such that the objectives of denunciation and deterrence along with the other objectives of restraint and rehabilitation can be met, a conditional sentence may be an appropriate sentence. A conditional sentence is intended to address both punitive and rehabilitative objectives. One of the purposes of the conditional sentence as set out in R. v. Proulx, [2000] 1 S.C.R. 61 includes to decrease reliance on incarceration and increase restorative justice.

F. Concurrent vs. Consecutive

[24] Regarding the issue of whether the assault and failure to provide the necessities of life sentences should be imposed concurrently or consecutively, I have considered R.F.S., supra, at para 47 (emphasis added):

47 I am not sentencing Mr. S. for other offences to which he pleaded guilty. I am aware, however, that he received sentences totalling 1 year without any credit being applied for remand. As such, I believe it is appropriate to consider whether I should make this sentence consecutive or concurrent to the other sentences imposed on Mr. S. Were I sentencing him on multiple offences, I would be guided by the principle that consecutive sentences are to be imposed unless there is a reasonably close nexus between the offences in time and place as part of one continuing criminal operation or transaction. If a consecutive sentence is to be imposed, the totality principle is engaged (s. 718.2(c)). While that principle might not be at play in law, it is, in my view in spirit and I have considered the matter as if I was bound by that principle. It is obvious to me that even being guided by the totality principle that this is a separate and discreet offence from the other matters to which he entered guilty pleas. I find that a sentence that is consecutive to any other sentence he is serving is appropriate.

[25] I find that there is a nexus between the assault and the failure to provide the necessities of life offences, and as such those sentences shall be imposed concurrent to one another.

G. Collateral Consequences

[26] Mr. Belkhier immigrated to Canada in 2014. He received permanent resident status in 2017. His counsel submits that were he to receive a sentence of 180 days or more, he would most likely be deported and required to return to Libya where he faced violence on a small and large scale and targeted in the political instability in that country.

[27] In R. v. Pham, 2013 SCC 15, the court held (emphasis added):

11 In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2(a) of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender's rehabilitation.

12 However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation. ...

The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of the offence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one can include loss of financial or social support. People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding a need for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they will have bearing on the offender's ability to live productively in the community. The mitigation will depend on weighing these obstacles against the degree of denunciation appropriate to the offence.

[Emphasis added.]

(The Law of Sentencing (2001), at pp. 136-37)

13 Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.

14 The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

15 The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will.

16 These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.

17 In R. v. Badhwar, 2011 ONCA 266, 9 M.V.R. (6th) 163 (Ont. C.A.), the offender was convicted of criminal negligence causing death while street racing and failure to stop at the scene of an accident. He was sentenced to 30 months (less 5 months for pretrial custody) on the first count and 12 months consecutive on the second. On appeal, he did not seek a reduction of his global sentence of 37 months; rather, he asked the court to adjust his sentence to 23 months and 19 months consecutive in order to avoid the collateral consequences of a sentence of 24 months or more, namely the loss of his immigration appeal rights. I agree with Moldaver J.A. (as he then was), who, in refusing to grant the adjustment, wrote the following, at paras. 42-45:

In seeking to have his sentence adjusted, the appellant does not suggest that the trial judge erred in imposing a penitentiary sentence on the charge of criminal negligence causing death — nor could he. This court ... upheld a 30 month sentence for [the offence of criminal negligence causing death while street racing] in respect of R. v. Multani (2010), 2010 ONCA 305, 261 O.A.C. 107 (Ont. C.A.).

Significantly, in Multani's case, the court refused to give effect to Mr. Multani's submission that the sentence of 30 months should be reduced to 23 months for reasons relating to his immigration status. At para. 3 of the decision, the court noted that "while the deportation consequences of the sentence may be a proper factor to consider in determining the appropriate sentence in certain cases, immigration consequences cannot take a sentence out of the appropriate range."

That principle applies equally to the appellant. In his case, somewhat ironically, he seeks to benefit from the fact that he was convicted of two offences and therefore can seek the adjustments he is requesting without interfering with the overall length of his sentence — something Mr. Multani could not do given that he was only convicted of the single offence of criminal negligence causing death.

No matter how one chooses to come at the issue, the bottom line remains the same. Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament's will on matters of immigration.

18 It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate.

19 I adopt the position asserted by Doherty J.A. in R. v. Hamilton (2004), 72 O.R. (3d) 1 (Ont. C.A.), at paras. 156 and 158:

... the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicated above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender . . .

... If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for [the offender], the trial judge could look at the deportation consequences for [the offender] of imposing a sentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender ... can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded to [the offender] by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence .... [Citations omitted.]

20 Accordingly, the sentencing judge is not compelled in all circumstances to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. It remains open to the judge to conclude that even a minimal reduction, i.e. from two years' imprisonment to two years less a day, would render the sentence inappropriate for the particular offence and the particular offender. Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender's personal circumstances.

H. Presentence Custody Calculation

[28] Mr. Belkhier did not apply for release following his final arrest in November 2023. As of today’s date, he has accumulated 193 actual days of presentence custody. As noted above, he was arrested and released three times before his final arrest.

[29] The Criminal Code legislates the determination of presentence custody calculation or enhanced credit:

719(3) Determination of sentence

In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

719(3.1) Exception

Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.

719(3.2) Reasons

The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.

[30] In R. v. Summers, 2014 SCC 26, the court wrote (emphasis added):

71 The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender's bad conduct, or the offender is likely to obtain neither early release nor parole. When the statutory exceptions within s. 719(3.1) are engaged, credit may only be given at a rate of 1 to 1. Moreover, s. 719 is engaged only where the pre-sentence detention is a result of the offence for which the offender is being sentenced.

[31] Mr. Belkhier has amassed presentence custody only as a result of his multiple breaches of release orders and because he did not apply for release after his fourth arrest.

[32] For those reasons, I limit his presentence custody credit to a rate of 1:1. His total credit is 193 days.

I. Assessing Moral Culpability

[33] In R. v. Roberts, 2020 ABCA 434, the court wrote:

35 In assessing moral culpability, a sentencing judge must consider the full breadth of circumstances that bear on an offender's moral culpability. As neatly summarized in Vader at para 16:

. . . This includes not only the nature of the unlawful act, but also the degree of planning and deliberation involved in the unlawful act and any other factor that is relevant to the offender's moral blameworthiness, such as the personal characteristics of the offender that may aggravate or mitigate the offender's moral culpability.

[34] In R. v. Nickel, 2012 ABCA 158, the court wrote:

33 We do not propose to establish judicial categories of child abuse cases. However, inspired by Laberge, we think that certain inquiries may be helpful to determine the moral culpability of an offender in the particular circumstances of a case.

34 Perhaps the most important consideration when assessing moral culpability of the actus reus is the child's exposure to harm. So, it would be useful to begin by determining the nature of the harm experienced by the child. For example, was it bodily harm as defined in s 2 of the Code ("any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature"), or a more serious form of harm or suffering from which the child may or may not completely recover. Finally, was the harm likely to endanger the life of the child?

35 As to the level of culpability arising from the mens rea, it will be necessary to determine the extent to which the harm was foreseeable, the risk or likelihood that the offender's conduct would give rise to the harm, as well as the offender's state of mind or state of awareness. For example, was the offender aware that the conduct was likely to subject the child to bodily harm, and if so, did he or she intend that consequence?

36 A sentencing judge must also take into account whether the conduct involved other factors, in particular those referenced in s. 718.2(a)(ii) and (iii) of the Code. Additionally, the use of a weapon or confinement, or use of potentially harmful substances such as alcohol or drugs, will also be important factors, along with the involvement of third parties, or the multiplicity of offences over time or the multiplicity of victims. The foregoing is not intended to be an exhaustive list. The point is that these factors are important considerations when assessing the moral culpability.

[35] I find that Mr. Belkhier’s moral culpability in the failure to provide the necessities of life to be high. He knew early Saturday morning that the child was very unwell. He was asked repeatedly if anything had happened to the child. It was not for several days, and after an Ornge air ambulance transfer to Sick Kids in Toronto that he finally advised what had happened to the infant. He observed the child’s condition to deteriorate and remained silent.

Conclusion

[36] I accept the joint submission for the offences of refuse to comply with a breath demand, impaired operation and assault of a peace officer.

[37] I advised counsel at the time of the sentencing hearing that I was having great difficulty with the joint submission for the offences of assault and failing to provide the necessities of life (predominantly the latter). I gave counsel an opportunity to address my concerns and invited them to submit further written submissions or caselaw in advance of the imposition of sentence.

[38] I have considered the presentation of a joint submission, all of the caselaw noted above, the primary sentencing principles of denunciation and deterrence, the fact that Mr. Belkhier is a first-time offender, and that there may be collateral consequences in the manner of immigration deportation.

[39] I have considered the imposition of a conditional sentence but find that it would not meet the sentencing principles and given the multitude of offences committed while on multiple forms of release, and the behaviour of Mr. Belkhier in dealing with the authorities, have determined that a ‘brick and mortar’ custodial sentence is necessary to meet the ends of justice.

[40] I reject the joint submission for the assault and failure to provide the necessities of life counts. The collateral consequences cannot override the proportionality of a sentence. The parties seek a sentence of 175 days on each, concurrent to the other. This position is proffered in order to ensure that he is not facing immigration consequences. There is nothing in the facts of this case, nor the circumstances of the offender that would justify a sentence of 175 days.

[41] That sentence, in my opinion, is an afront to the administration of justice and would bring it into disrepute. It is contrary to the public interest, and it is so "markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system".

[42] The sentence will be as follows:

(1) FTPN – 365 days custody less 73 days of PSC leaving a remnant sentence of 292 days, 15 months probation, DNA, s. 110 for 5 years. (2) Assault – 175 days custody concurrent to the FTPN, 15 months concurrent probation, DNA, s. 110 for 5 years. (3) Fail to comply with breath demand – suspended sentence and 15 months concurrent probation, noting 30 days of PSC, driving prohibition 12 months. (4) Impaired operation – suspended sentence and 15 months concurrent probation, noting 60 days of PSC custody, driving prohibition 12 months. (5) Assault peace officer – suspended sentence and 15 months concurrent probation, noting 30 days of PSC, DNA, s. 110 for 5 years.

Released: May 17, 2024. Signed: Justice Angela L. McLeod