Ontario Court of Justice

Date: March 14, 2024 Court File No.: 22-38101018

Between:

HIS MAJESTY THE KING

— AND —

TRAVIS JOLLIFFE

Before: Justice Angela L. McLeod

Judicially pre-tried: December 23, 2022 Guilty plea: June 16, 2023 Sentencing Hearing: January 11, 2024

Counsel: Miriam Villamil-Pallister, for the Crown Rumsha Siddiqui, for the Applicant

McLeod J.:

Overview

[1] An agreed statement of fact was filed as Exhibit #1 at the time of the guilty plea. A SCAN (Sick Kids, Suspected Child Abuse and Neglect) report, authored by Dr. Kadar, was filed as Exhibit #2 and is attached hereto as Appendix ‘A’.

[2] The agreed facts are as follows (to be clear, Mr. Jolliffe is guilty of having assaulted his baby when he was approximately 1 month old). Tragically, baby Beckham died one month thereafter, when he was approximately 2 months of age.:

(1) Travis Jolliffe is approximately 6'0 tall and a muscular 250lbs.

(2) On January 27th, 2022, police and EMS attended to baby Beckham. He had been located by the accused vital signs absent (VSA) after Mr. Jolliffe had fallen asleep with the baby on the living room couch.

(3) Beckham Jolliffe was approximately 2 months old at the time of his death. He lived with parents, Travis Jolliffe 19ys of age and Danika Jolliffe 20yrs of age, at 76 Owen Street, Barrie.

(4) On Thursday January 27th, 2022, at 10:07AM police attended 76 Owen Street in the City of Barrie at the request of Georgian Ambulance for a two-month-old infant vital signs absent. Beckham was rushed to the Royal Victoria Regional Health Care Center and then to the Hospital for Sick Children in Toronto. On the 28th of January 2022, Beckham passed away after being removed from life support.

(5) On or about the 2nd of February 2022, an autopsy was completed on Beckham by Dr. Chiasson and Dr. Gibbons of the Hospital for Sick Children. During the autopsy it was discovered that Beckham had rib fractures which were in the healing stage. An approximation date of the healing stage was from 1 week to 1 month prior to death.

(6) It was also discovered that Beckham had been hospitalized on or about the 1st day of January 2022, with a mouth bleed. At that time Beckham remained admitted in hospital for approximately 7 days. He would have been approximately 1 month old.

(7) On the 8th of February 2022, both Travis and Danika Jolliffe attended the Barrie Police Service for cautioned statements with D/C Carleton. Danika had no information about the fractured ribs and provided a detailed account of Beckham's short 2-month life while in the care of both she and Travis. Danika advised she was aware Travis did at times have difficulty with Beckham's crying and would become frustrated but had no evidence of any harm to the baby.

(8) On the 8th of February 2022, at approximately 3:39pm Travis Jolliffe provided a cautioned statement to investigators and was presented with the findings during the post-mortem. He became emotional and recalled an incident during the early morning hours of the 27th of December 2021. He was taking care of Beckham at 76 Owen Street, Barrie. He was the only person awake at the residence with Beckham and was becoming extremely frustrated with his non-stop crying. The accused advised he squeezed Beckham, like a one-armed bear hug.

(9) Travis further provided an inculpatory statement outlining that he became enraged while Beckham was in his care and while holding him squeezed him out of frustration. He could hear Beckham have an odd exhale or gasp for a breath. After the assault he returned to the couch with Beckham, began crying and apologizing to him for what he had just done.

(10) Travis was so concerned he removed Beckham's clothing checking his rib cage area for injuries which he would continue over the next 3-4 days. He failed to seek any medical attention for Beckham, although he was aware that he may have injured him from the assault.

(11) Approximately 5 days later (January 1st) Beckham was rushed to the RVRHC [1]. Again, he was alone in his father’s care and was found with blood coming from his mouth. Beckham remained in hospital for 7 days for the unknown injury, reported to be some lesions inside his mouth.

(12) During this 7-day period the accused failed to report to nursing staff, or the doctors, the assault that he had inflicted on Beckham by violently squeezing him just days before admission into the hospital which may have explained the unknown medical incident.

(13) A report completed by Dr. Paul Kadar from the SCAN unit of Sick Kids [2] found that Beckham had 4 posterior rib fractures of his left and right ribs [3]. Analysis suggested that the rib fractures were likely less than 3-6 weeks old at the time of death [4]. Posterior rib fractures in infants can be caused by direct trauma to the chest/thorax or more typically from force applied indirectly to the chest generated by front-back compressions of the rib cage. Dr. Kadar concluded that the events described by Mr. Joliffe can provide an explanation for some or all of the rib fractures that were identified at autopsy. Dr. Kadar's Report is attached herein.

[3] A timeline of Beckham’s short life:

(1) November 25, 2021 – Beckham is born.

(2) December 27, 2021 (33 days old) – Travis Jolliffe assaulted Beckham, resulting in 4 posterior rib fractures of his left and right ribs.

(3) January 1, 2022 (38 days old) – Beckham is rushed to hospital with blood coming from his mouth.

(4) January 8, 2022 (45 days old) – Beckham is released from the hospital.

(5) January 27, 2022 (64 days old) – Travis Jolliffe accidentally suffocated Beckham when they slept on the couch together.

(6) January 28, 2022 (65 days old) – Beckham was removed from life support and died (the date of his death is erroneously noted as July 28, 2022, in the SCAN report).

Aggravating and Mitigating Factors

A. Mitigating

[4] I find the following to be mitigating factors for consideration on sentence:

(1) Mr. Jolliffe’s guilty plea.

(2) Mr. Jolliffe’s cooperation with the police and confession.

(3) Mr. Jolliffe’s cooperation with the Family Connexion Services.

(4) The completion of the Triple P parenting program in advance of sentencing.

(5) Mr. Jolliffe’s immediate expression of remorse and attempt to check the infant for injuries. His expression of remorse when he confessed to police. His continued expression of remorse throughout the criminal proceedings.

B. Aggravating

[5] I find the following to be aggravating factors for consideration on sentence:

(1) Mr. Jolliffe was in a position of trust toward Beckham.

(2) The lack of medical care undertaken on behalf of Beckham to address the injuries.

(3) Mr. Jolliffe’s silence about the assault and injuries when Beckham was hospitalized and while the staff attempted to affect a diagnosis.

(4) The prolonged and unattended pain that Beckham would have suffered due to the lack of medical attention.

Circumstances of the Offender

[6] A presentence report was authored and filed as Exhibit #5.

[7] Mr. Jolliffe’s personal circumstances can be summarized as follows:

(1) He was 19 years of age at the time of the assault (now 21years of age).

(2) He was, and is, married to Beckham’s mother, Danika Jolliffe. They have been in a relationship for four years.

(3) After Beckham’s death the couple had twin boys born in September 2023. Sentencing was adjourned to allow Mr. Jolliffe to attend their birth.

(4) He had a healthy childhood, free from any abuse or neglect. He was described as a ‘great kid’ who was never in trouble.

(5) After the death of Beckham, he went to live with his mother. He is particularly close to his grandmother and speaks to her daily, visits her three times per week and grocery shops with her each Thursday.

(6) He is regularly employed at a local bakery. He starts work at 5:30am and ends at 3pm.

(7) He has never suffered from alcohol nor drug addiction.

(8) He volunteers at a local church on a regular basis. He attends church services alongside his wife to support her religious beliefs.

(9) He has had no prior involvement with the criminal justice system.

[8] The defence filed several documents, including:

(1) A letter confirming his volunteer work at the church.

(2) A GPS suitability inquiry report confirming that both his mother’s and grandmother’s addresses are suitable locations for GPS monitoring.

(3) A Triple P Parenting program online certificate of completion. The program consisted of eight, one-hour, online sessions.

(4) A Simcoe Family Connexions [5] Report dated December 15, 2023. The report outlines that:

(a) Danika lives with the twins at her parents’ house.

(b) Mr. Jolliffe lives with his mother.

(c) A safety plan is in place such that Danika and Mr. Jolliffe cannot reside with one another.

(d) Mr. Jolliffe has supervised access to the twins at the maternal grandparents’ home. He is to be fully supervised with the boys at all times. Danika cannot supervise him with the twins.

(e) The agency believes that Mr. Jolliffe is in the Contemplation and Preparation stages of change. That believe is founded on evidence of a lack of understanding as to what exactly is required, but is seen as recognizing the benefits of changing, wanting to change / improve, weighing those benefits and taking some small steps towards change, such as taking the Triple P Parenting course and actively engaging in clinically managed access to the twins.

(f) Both parents are working cooperatively with the agency.

(g) Mr. Jolliffe identified that he wants to work on learning soothing techniques for the boys if and when they get upset, as well as strategies on how to remain calm himself, and address his own frustration should he feel himself escalating in any way. The strategy is for him to take a walk or to engage in physical activity.

Victim Impact

[9] The only victim impact statements came from two of Mr. Jolliffe senior’s aunts.

[10] One aunt wrote:

It deeply saddens me that Beckham’s short life was possibly impacted by unthinkable acts. He was only with his parents for 8 short weeks and was part of a much larger family that included aunts, uncles, and many cousins.

Even worse, this has led to a profound sadness that Beckham’s life was compromised and there is no one advocating for him as the ultimate victim.

[11] The second aunt wrote:

We as a family, no longer gather together. This has been upsetting and we aren’t sure how to move forward. I write this impact statement so that Beckham’s life meant something, he is more than a social media accessory, he was an innocent baby that had no voice and even though we never met, I hope he knows he has people that care for his legacy and will still try to advocate for him.

[Beckham was born during COVID]

Position of the Parties

A. Crown

[12] The Crown seeks a custodial sentence of two years less one day and is opposed to a conditional sentence. Further, the Crown seeks the maximum term of probation for 36 months, a DNA order, and a s. 110 order for 10 years.

[13] The Crown underscores the need for denunciation and deterrence.

B. Defence

[14] The defence seeks a conditional sentence order in the range of 15 – 24 months less one day. The ancillary orders are jointly submitted to be appropriate.

[15] The defence seeks exceptions to complete house arrest for attendance at employment between 4am (work commences at 5am), daily attendance at the home of his wife to spend time with the twins after work for 3-4 hours, attendance at the gym either before work at 2am, or after visiting the twins post 9-10pm, attendance at religious services alongside his wife (noting that he is not a religious observer but wishes to support his wife in her religious observances), and time on each Thursday to assist his grandmother with her weekly grocery shopping.

Caselaw

A. Child Abuse Sentences

[16] Each counsel made reference to a number of cases.

[17] In R. v. Habib, [2000] O.J. No. 3036 (ONCA) the appellant had been convicted of aggravated assault by a jury. She had been sentenced to two years less a day, to be served conditionally, and three years probation. The child was 18 months old. She had a brain injury, a skull fracture and serious injuries to her eyes. The injuries were as a result of what was then called Shaken Baby Syndrome. The appellant was the babysitter.

[18] The Court of Appeal agreed with the sentencing judge that the range for a typical case is three to five years custody. However, that range must be flexible to accommodate rare or exceptional cases. The Court of Appeal upheld the sentence.

[19] In R. v. McCauley, [2007] O.J. No. 1593, the defendant had plead guilty to aggravated assault of her 31-day old biological son. She was 20 years old at the time of the offence. She had been drinking alcohol. The infant had been shaken and a brain injury that was considered to be life threatening resulted. The infant recovered and was adopted. K.M. went on to have another child.

[20] Justice Hill summarized the caselaw as follows:

[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 (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. S.E.C., [2003] B.C.J. No. 1768 (C.A.) 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), 144 (3d) 277 (Sask. C.A.) at 286; R. v. O’Brien, 2000 BCCA 199, [2000] B.C.J. No. 669 (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 (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 (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. J.H., [1999] E.W.J. No. 5454 (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. & Lab. 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. G.B., [2003] S.J. No. 335 (C.A.) at para. 12-4; R. v. C.P., [2006] E.W.C.A. Crim. 3019 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. J.H., at para. 14; R. v. Y., [1998] E.W.J. No. 2542 (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: R. v. C.P., at para. 8, 11; R. v. Carle, at para. 10; R. v. Wigley, 2005 ABCA 295, [2005] A.J. No. 1191 (C.A.) at para. 3; R. v. J.D.B., [2002] N.S.J. No. 211 (S.C.) at para. 4-5, 11-12, 43 (22-yr.-old offender with ADD taking no steps in 2½ yr. to assist in controlling his emotions).

(11) As with most crimes, remorse of the offender, contributes to mitigation of sentence.

[21] While Justice Hill held that a conditional sentence is available, he declined to impose one determining that K.M. was a continued risk to the community given that she wanted to have another baby. She had breached her bail conditions. She exhibited limited insight into her actions. Additionally, Justice Hill held at paragraph 38 that “the wider public interest expressed through the principles of denunciation and deterrence in the circumstances of angry abuse of a very young baby warrant nothing less than incarceration.”

[22] A sentence of 12 months custody followed by 36 months probation was imposed.

[23] In R. v. Henderson, (2022 unreported), Justice Bird of the Ontario Court of Justice noted that the defendant was a first-time offender, was 24 years of age, did not have a criminal record and had the support of his family and friends. He was employed and had a positive presentence report. He was convicted after trial and demonstrated a lack of insight into the harm caused by his actions. A sentence of three years custody was imposed for the offence of aggravated assault.

[24] In R. v. S.B., 2021 ONCJ 162, this court found that there were special mitigating circumstances that warranted the imposition of a conditional sentence order of 15 months, followed by 36 months of probation.

[25] S.B. had pled guilty to a single count of assault cause bodily harm. The victim, infant R.B., was 8 months old at the time of the assault. S.B. was 26 years of age. R. B. had suffered two fractures to his right ribs, a fracture of the arm, a fracture to his left leg and two fractures to his right leg. S. B. had a normal childhood, had a lengthy history of mental health issues, had engaged in 5 sessions of counselling, and had no criminal record.

[26] S.B. was cognitively much younger than her chronological age. She had been seeking treatment from her physician for postpartum depression. She was cooperative with Family Connexions and R.B. had been adopted by a relative. S.B. had delayed seeking medical attention for R.B. who would have suffering for an extended period of time.

[27] In R. v. Marks, 91 C.C.C. (3d) 421, the Newfoundland Court of Appeal held that:

27 Physical child abuse frequently falls into two distinct types:

(i) The application of force with, if not the intention, the expectation of causing injury or, an indifference as to whether injuries will result and,

(ii) the application of force where a parent or other custodian of a child is immature and is unskilled in matters of childcare, and, acting out of emotional upset, frustration or impatience, does not fully appreciate the serious injuries which might result.

28 In the first situation, there is a high degree of culpability, and the Court will in most cases impose a severe sentence. In the second situation, while punishment is warranted, a sentence, where such is warranted, will not ordinarily be a severe one and will usually be followed by a period of probation, a condition of which would be that the abuser receive training and counselling to the end that further acts of abuse will be avoided.

B. Conditional Sentences

[28] 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.

[29] 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.

[30] Section 742.1 of the Criminal Code sets out the considerations for a CSO. In summary, there are four criteria to be met:

(a) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(b) the court must impose a term of imprisonment of less than two years;

(c) the safety of the community would not be endangered by the offender serving the sentence in the community; and,

(d) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[31] The first three criteria establish whether a CSO is available; the last whether it is appropriate.

[32] A conditional sentence can serve the sentencing principles of deterrence and denunciation. In R. v. Proulx, 2000 SCC 5, the court held:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

[33] Furthermore, the court held that a CSO is both a punishment and can be as harsh as incarceration:

41 This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration. As this Court stated in Gladue, supra, at para. 72, in our view a sentence focused on restorative justice is not necessarily a "lighter" punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence. A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

42 Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders "serving sentences of imprisonment in provincial correctional facilities" (R. v. W. (J.) (1997), 115 C.C.C. (3d) 18 (Ont. C.A.) at p. 33).

[34] In R. v. Friesen, 2020 SCC 9, the Supreme Court spoke to the sentencing principles of parity and proportionality and their interconnectedness:

(1) Proportionality and Parity

30 All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v. Wilmott, [1966] 2 O.R. 654 (Ont. C.A.)) and is now codified as the "fundamental principle" of sentencing in s. 718.1 of the Criminal Code.

31 Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. This principle also has a long history in Canadian law (see, e.g., Wilmott) and is now codified in s. 718.2 (b) of the Criminal Code.

32 Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality (R. c. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163 (S.C.C.), at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 (S.C.C.), at paras. 78-79).

33 In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality.

Conclusion

[35] It is trite to acknowledge that newborn infants are the most vulnerable members of our communities. They are utterly dependent upon their caregivers.

[36] It is also important to acknowledge that first time parents, especially those who are young and immature, are vulnerable to frustration and poor decision making because of their inexperience, both as parents and in life in general.

[37] This vulnerability was exponential during the COVID pandemic, when parents and community members were isolated, when household stressors were maximized.

[38] I find that Mr. Jolliffe falls into the second category of physical child abuse cases. He was a young and immature 19-year-old parent. As a result, his moral culpability is lessened.

[39] By all accounts, Mr. Jolliffe is a caring and dutiful father to his newly born twin sons. He has worked cooperatively with Family Connexions, has almost daily supervised access and is working to provide financially for his dependents. He maintains a close relationship with his grandmother and assists her with her household tasks.

[40] The assault of Beckham was an isolated incident. Mr. Jolliffe pled guilty and is a first-time offender.

[41] A conditional sentence order can achieve the sentencing principles of denunciation and deterrence.

[42] The appropriate sentence is a conditional sentence of 15 months to be followed by 36 months of probation, a s. 110 order for 10 years, and a DNA order.

[43] The terms of the conditional sentence order will include exceptions for work, access to the twin boys, religious services and for the necessities of life each Thursday between noon and 4pm. Mr. Jolliffe can be on the property of his residence or the property of the twin’s residence during access visits. This will enable him to step outside for exercise and for self-soothing activities while engaged with the twins. Given his lack of antecedents and compliance with his terms of release, GPS monitoring is not required.

Released: March 14, 2024. Signed: Justice Angela L. McLeod

Footnotes

[1] Royal Victoria Regional Health Centre

[2] The SCAN team is a hospital-based multidisciplinary team which evaluates children with concerns of physical abuse, sexual abuse, emotional harm, or neglect.

[3] “Rib fractures are rarely seen in infants resulting from accidental injury unless a history of significant trauma is provided.” SCAN report, pg. 10

[4] “The rib fractures in Beckham would have been painful when sustained and for a period of likely days afterwards. They would not have contributed to the immediate cause of death in his case.” SCAN report, pg. 10

[5] Formerly known as the Children’s Aid Society.