WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(2.1), read as follows:

486.4 (2.1) Victim under 18 — Other offences — Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) Mandatory order on application — In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

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

ONTARIO COURT OF JUSTICE

DATE: 2024 10 23 COURT FILE No.: Central East Region: Barrie/Bradford Courthouse: File #3811-998-23-38100237

BETWEEN:

HIS MAJESTY THE KING

— AND —

M.R.

Before: Justice Peter C. West

Oral Sentencing Submissions Heard on: September 12, 2024 Oral Reasons for Sentence Given on: October 23, 2024

Counsel: Ms. M. Villamil................................................................ counsel for the Crown Mr. J. Shulman.................................................. counsel for the accused, M.R.

WEST J.

[1] M.R. pleaded guilty on July 15th, 2024, in Barrie Ontario Court of Justice to a charge of fail to provide necessaries of life between December 1st, 2021, to November 30, 2022, to B.L. contrary to s. 215(2)(a)(ii) of the Criminal Code of Canada and assault with a weapon – a belt, to B.L., contrary to s. 267(a) of the Criminal Code of Canada. A Pre-Sentence Report (PSR) was ordered, and sentencing submissions were adjourned to September 12, 2024, in Bradford Courthouse. An agreed statement of facts was provided at the sentencing hearing and was marked as Exhibit 1. A report from Dr. Michelle Gordon (Paediatrician), MD, FRCPC, of Soldiers Hospital in Orillia respecting her findings on November 30, 2022, was marked as Exhibit 2. A report from the SCAN Program at The Hospital for Sick Children, dated April 21, 2023, authored by Dr. R. Cho, MD, FRCPC, Staff Pediatrician, SCAN and Dr. Haneen Alturid MBBS, SBPM, Clinical Fellow SCAN, was marked as Exhibit 3. Exhibit 4 is a colour photograph of B.L. The PSR was marked as Exhibit 5 and Defence Materials, which included a psychiatric report and assessment from Dr. Julian A.C. Gojer, Forensic Psychiatrist, dated March 2, 2024; Counselling letters from Caroline Kerjikian, dated June 26, 2024, and September 10, 2024; Letter from Danielle Colangelo, Child Protection Worker SMCYFS, Barrie Protection Team 4, dated August 2, 2024; Letter from M.R., dated August 26, 2024; Letter from M.M., (Accused’s mother), dated August 28, 2024; Letter from S.R.L., (Accused’s sister), dated August 19, 2024; Letter from G.S., (close friend), dated August 19, 2024; Letter from D.M. (Accused’s cousin), dated August 22, 2024; Family Budget June 2024 prepared by M.M.; Affidavit of Danielle Colangelo, Child Protection Worker SMCYFS, dated June 13, 2024 was marked as Exhibit 6 on Sentence.

Position of the Parties

[2] The Crown is seeking an 18 month to two year less a day sentence in custody plus three years probation. She points to the primary sentencing principles being deterrence and denunciation given the serious aggravating factors present, including the fact that B.L. is a child, M.R. was in a position of trust towards her, the serious condition caused to B.L. by the actions and conduct of S.L., her mother and common law wife of M.R., who was fully aware of her actions and conduct but did not intervene and is therefore a party to her criminality, and the fact that M.R. assaulted B.L. with a belt, causing marks to her buttocks and slapped her across her face causing her lip to bleed.

[3] The defence submits a two year less a day conditional sentence with restrictive conditions can properly address the paramount sentencing principles of denunciation and deterrence, while addressing the exceptional mitigating circumstances reflected in the upfront work already completed by M.R., his cooperation with police, medical and child welfare staff and his significant, genuine remorse reflected by his guilty plea and complete acceptance of responsibility.

Factual Background

[4] M.R. and S.L. were in a common law relationship for approximately six years. They have two children together, E.R., age 7 weeks, and B.R., age 4. S.L. has a child from a previous relationship, the victim, B.L., age 7. The family resided together in Barrie prior to November 30, 2022.

[5] On December 1, 2022, Simcoe Muskoka Family Connexions (SMFC) child protection worker, Kathleen Fox, contacted Barrie Police Crimes Against Persons Unit to request a joint investigation with respect to suspected child abuse and neglect of B.L. (age 7). She had received anonymous information that B.L. is not allowed to leave her bedroom, not permitted to use the washroom and not fed by her mother S.L. When Ms. Fox attended the residence on November 30, 2022, she found B.L. to be extremely thin and malnourished. B.L. disclosed many extremely concerning details to Ms. Fox relating to not being allowed to leave her bedroom, eat, use the washroom, being isolated, stand for long periods in one spot and physical and mental abuse by her parents. She was brought to the Suspected Child Abuse and Neglect (SCAN) clinic at Soldiers Hospital in Orillia by M.R. and Ms. Fox on December 1, 2022. While at SCAN, M.R. sent Ms. Fox a photograph of B.L. he had taken a few days earlier, this photo is Exhibit 4.

[6] B.L. was admitted to the SCAN clinic at The Hospital for Sick Children in Toronto for one week. She was admitted for Refeeding Syndrome a potentially fatal condition caused by starvation and severe malnutrition. Barrie police attended the hospital and interviewed B.L., which revealed the following:

[7] Her mother, S.L., feeds her one bowl of oatmeal a day and she is not allowed to eat her oatmeal until she completes her behaviour worksheets. Some days she does not get anything to eat or permission to use the washroom if she does not complete her behaviour worksheets. She is not allowed out of her bedroom, does not attend school and has left the residence on very few occasions over the past year. Her father, M.R., although frequently working in the City of Toronto, has had knowledge of this treatment and did not take appropriate action and is a party to the offence. B.L. also disclosed her father has physically abused her on more than one occasion. On one occasion he used a belt to strike her buttocks. She gets lots of smacks on her buttocks by both parents and on one occasion M.R. took a photo of her bare buttocks to show her the marks. There was a recent incident when her father slapped her face with such force that her head hit the wall and she landed on the floor. Her lip split open and blood came “streaking out”. Her father used her hooded towel to clean up the blood. These offences occurred between December 1st, 2021, to November 30th, 2022, exact dates unknown.

[8] Between those same dates both S.L. and M.R. are charged with fail to provide necessaries of life to B.L., a child under 16 years of age, and thereby endanger her life, contrary to s. 215(2)(a)(ii). M.R. was also charged with assault with a weapon and assault respecting the two incidents described above.

[9] On December 6, 2022, a search warrant was executed at the residence in Barrie and S.L. was arrested and transported to Barrie Police Service. S.L. was searched incident to arrest and her cell phone was seized. An entry video was taken by police. The first room entered appeared to be the bedroom of S.L. and M.R. and their two other children, E.R. and B.R. There is a queen size bed and a toddler bed, B.R.’s, in the corner. B.R.’s bed is surrounded by neatly arranged stuffed toys, many books within reaching distance. Spiderman decals and a garland with his name were on the wall. In B.L.’s bedroom there was a gate and door alarm affixed to the door. Her bedroom was impersonal with little or no decorations, no stuffed animals or books. There were books and board games on a top shelf in her closet, out of reach and the closet was affixed with an alarm. There was a white desk with no chair and a camera above it. Beside the desk was a bin filled with hundreds of completed behavioural work sheets. The only items attached to the walls were examples of behavioural work sheets and framed printouts of how to improve behaviour and self-regulate emotions.

[10] Two hooded children’s towels were found in B.L.’s laundry hamper with what appeared to be dried blood on both. These items were seized as well as a number of the completed work sheets.

[11] On April 25, 2023, police completed their analysis, pursuant to a search warrant of S.L.’s cell phone. Out of 78,174 images, approximately 40% were still captures of the surveillance system inside B.L.’s bedroom. Images of B.L. standing at attention with both her hands above her head, B.L. eating at her desk, images where S.L. and M.R. appear to be shouting or in positions that suggest physical abuse, images of B.L. crying and of B.L. looking over her shoulder towards the basement. A number of images of B.L. standing at her desk completing behaviour work sheets, cleaning her room or lying on her bed. There is no chair in her bedroom and the majority of images show her standing on a laminate floor.

[12] B.L. told police in her interview that the cameras catch her doing bad behaviours and the videos are sent to her mom’s cell phone. Police believed based on the images in S.L.’s phone that S.L. captured any bad behaviour by B.L. and used the image as evidence. There are several images of B.L. having white tape or bandages wrapped on her fingers and B.L. had indicated to the SMFC worker that she bites her nails very low as she is nervous about her parents being mad. There are very few images of B.L. outside her bedroom, any image of B.L. eating shows her standing at her desk with baby gate or bedroom door closed. There are a couple of blurry images of B.L. going to and from the kitchen, indicating she is running or moving quickly passed the camera.

[13] There were many images of B.R. being in the kitchen and living room, images of M.R. reading to him in bed as well as videos of B.R. playing with his toys in the living room. There were no recent photos of B.L. with either of her parents.

[14] The facts reflected the majority of the still images taken by the surveillance camera in B.L.’s room were of concern, but the following were of the most concern:

May 31st 2022 - B.L. with back to her desk, M.R. standing in front of B.L. with closed left fist in close proximity to her head.

August 19th 2022 - Multiple images of B.L. with inside out pants and underwear on top of her head, indicative of B.L. being disciplined for urinating herself. B.L.'s hands are both straight up above her head. M.R. and S.L. are both seen inside the bedroom in some of these images.

August 19th 2022 - B.L. standing with her back to the wall, M.R. sitting on B.L.'s bed squirting her with a water gun.

October 9th 2022 - B.L. with her back to the wall, M.R. standing in front of her with a belt in his hands.

October 13th 2022 - B.L. standing with her back to the wall, M.R. standing in front of her with a hat in his hands. Based on same clothing worn and body positions, these are believed to be still images of the video of M.R. assaulting B.L. with his hat.

November 12th 2022 - M.R. and B.L. at foot of her bed. M.R. grabbing B.L.'s right shoulder with his left hand, unknown object in M.R.’s right hand.

November 22nd 2022 – As recorded by M.R., B.L. is viewed with back to her desk, S.L. standing in front of her. S.L.'s right, open hand and arm slightly blurred across her body to right side of B.L. Body positions suggest S.L. slapping B.L. on head/face.

There were no videos documenting any assaults on S.L.'s cell phone.

[15] Police also analyzed S.L.’s text conversations, many of which were concerning. In one conversation S.L. and M.R. were chatting while S.L. was home with the children and M.R. was at work or outside the residence. M.R. asked how B.L. is doing and S.L. responds she is about to throw B.L. into traffic on Anne Street due to her poor behaviour. Further, S.L., in other conversations with her friends refers to B.L. as a “psycho bitch”.

[16] During submissions I was advised by the defence, conceded by the Crown, that S.L. put pressure on M.R. that she was the only one who had any say respecting B.L., and she would routinely indicate to M.R. she would not allow him to have contact with B.L.

[17] M.R. provided instant cooperation with the police respecting B.L., he provided a complete statement admitting and acknowledging his offending behaviour towards B.L. He provided incriminating text messages between S.L. and himself respecting B.L. to the police. He will be a witness for the Crown as to his conduct and that of S.L.’s. He attended Soldiers Hospital with the SMFC worker with B.L. when she was admitted and ultimately transferred to SCAN clinic at Sick Kids Hospital.

[18] The anonymous source of information to SMFC concerning the abuse and neglect of B.L. was from M.R.’s sister, S.R.L. When M.R. was told his sister had contacted CAS, he thanked her because everything concerning B.L. was now out in the open. After S.L. was charged by police on December 6, 2022, the three children, B.L., B.R. and E.R. were ultimately placed with M.R.’s mother, M.M., and since January 2023, M.R. has been permitted to live with his mother and the three children, including B.L., and he has been allowed strict supervised contact and access by SMFC and his bail was varied with the Crown’s consent.

Offender’s Background

[19] M.R. is 40 years of age and is currently single. Prior to December 2022, he had been in a 6 to 7 year common law relationship with S.L. He has 2 children with S.L.: B.R. who was 4 years of age in November 2022 and E.R., who was 7 weeks old in November 2022. He first met S.L. through a dating website in 2015, when she was living in a shelter with her infant daughter, B.L. Shortly after meeting they both moved in with M.R.’s mother, M.M. in Mississauga. They resided with her until she moved into a separate apartment. M.M. advised her son did all of the cooking, cleaning and taking care of the victim when he was home from work and S.L. put in minimal effort. They ultimately were evicted for inability to pay rent. It was then that they moved to Barrie and while there S.L. had two further children, B.R. and E.R. Family members of M.R. confirmed to the probation officer that after M.R. and S.L. moved to Barrie, S.L. would discourage M.R.’s family from visiting and when they did, they were not allowed by S.L. to see B.L.

[20] M.R. described his relationship with S.L. as being unhealthy. He expressed S.L. was always angry with him when he asked about B.L. When he was at work she would text him repeatedly, sometimes as much as 98 texts during an 8-hour period.

[21] M.R. advised the probation officer he was extremely close to his mother, his sister and her family, his cousin, D.M. and this was confirmed by them. M.R. calls his mother daily when he is at work and has been residing with her since January 2023. M.M. has full custody of the B.L. and M.R.’s two children. This was confirmed by Ms. Danielle Colangelo of Muskoka Simcoe Family Connexions.

[22] M.R. left school prior to completing Grade 12 to work at the age of 17. He went back to school and completed Grade 12 in 2001, reporting he went from a 52% average to an 81% average in his final year of high school. He has worked in the drywall industry since age 15, which was so he could contribute his earnings to the family household. He continues to work in this field at the present time and is a member of the union. He provided proof of his current employment, and his current employer is aware of the matter before the court.

[23] When M.R. was living in Barrie with S.L. and their children his routine was waking up every morning at 3 a.m., walking an hour to the train station, taking the train from Barrie to Toronto, working 8-hour days and then repeating the process to get home from work, which resulted in his arriving home late most nights. He was often late for work most days. His friend and co-worker, G.S., referred to him as a confused man during this period of time. G.S. reported M.R. is a hard worker and has positive work relationships with his co-workers. M.R. stated he takes work seriously and takes pride in his employment. He has significant debt, $60,000 due to legal fees, tax debt and outstanding traffic fine (relates to driving his father’s vehicle, which was uninsured without his knowledge, and had been put in his name without his knowledge as well.)

[24] The Pre-sentence Report describes M.R. as polite and forthcoming with information. Collateral contacts confirmed the information he had provided. M.R. expressed great remorse for his conduct and identified stressors in his life leading up to his involvement. He named these as his being the primary caregiver for three children, primary source of income for the household, lack of sleep and his unhealthy relationship with S.L. He affirmed he had low self-confidence and struggled to speak up when he should have. He advised he struggled to take action and should have taken action. He completely accepted his failure to take action. When asked about what kind of behaviour would require B.L. to complete a work sheet he advised she would steal food, when she should have asked. He was aware of what was happening and did not speak up. He described being concerned when he arrived home from work that B.L. would not be alive and when describing this he became emotional. He described sneaking food like apples and water to B.L. He would help her fill out the work sheets so she would be allowed to leave her bedroom. He referred to himself as an extreme failure and was emotional throughout his interview with the probation officer. The probation officer, Sarah Smith, believed M.R.’s remorse was genuine and demonstrated a willingness to make amends and fully accepted responsibility for his actions.

[25] The probation officer confirmed the counselling attended by M.R. with Caroline Kerjikan, a social worker, who provided counselling. He was an active participant and displayed understanding of the topics covered. He expressed an interest in continuing therapy.

[26] M.R.’s sister, S.R.L., advised she had contacted CAS anonymously as a result of information her mother, M.M. advised her M.R. had disclosed concerning B.L. She confirmed her brother thanked her for contacting CAS when she advised him after B.L.’s abuse and neglect came to light. His brother-in-law noted M.R. has a big heart, tries to make everyone happy, generous, hardworking and a family man.

[27] M.R. has tremendous support from his extended family members. His mother, M.M., describes her son as a caring, hardworking man and could not believe his failure to act. She described him as a great father with his children and very remorseful for his actions. She related it is great having him living with her and the children and that he appears to be back to himself. Both S.R.L. and D.M., his cousin, have no concerns or difficulty with M.R. being around or with their children.

[28] Detective Constable Sinclair, the investigating officer, described M.R. as cooperative with police, remorseful, emotional. He indicated he should have acted being aware of the circumstances involving B.L.

[29] Ms. Danielle Colangelo, Muskoka Simcoe Family Connexions worker, became involved in this case in March 2024. Her involvement is currently ongoing. She advised the probation officer, M.R. is cooperative, demonstrates remorse, takes responsibility and admits he made mistakes. He has been forthcoming and honest with regards to the offences and taken accountability for his actions and inactions. M.R. has been responsive and cooperative with the society and has followed through with all recommendations for services/supports. She believed M.R. would be suitable for community supervision.

[30] M.R. also was assessed by Dr. Julian Gojer, who conducted a forensic psychiatric assessment as to his future risk of re-offending and any underlying mental health diagnosis. Dr. Gojer’s Report is dated March 2, 2024. The report concludes that M.R. is not suffering from any mental health concerns The report further indicates “his offending is related to passivity, lack of assertiveness and low self-esteem that prevented him from speaking up and ensuring that the victim and the other children were appropriately cared for.” Further, the report indicates, “he does not make excuses but takes responsibility for his role in the child’s and the children’s parenting”. Dr. Gojer notes, “To address the lacunae in his personality, he has engaged in counselling and is doing well in treatment…Given the family support that he has and the appropriate counselling to date which seems to have made significant changes in his personality. I see risk to his children at this stage as very low or non-existent. He should continue in counselling with Ms. Kerjikan and also could benefit from parenting courses. I do not see any restrictions in him having access to his children.”

[31] The PSR indicates M.R. has strong family support, is prosocial and is gainfully employed, working in a stable fulltime unionized career earning approximately $1,284.00 weekly take home earnings. He has been engaged in counselling for some period of time and this has been seen as benefiting him to better understand his thoughts, feelings, behaviours and actions. He has indicated to the probation officer he is open to continue counselling and to take parenting courses. It was the probation officer’s opinion that M.R. is a suitable candidate for community supervision.

[32] M.R. does not have a criminal record.

Fail to Provide Necessaries of Life s. 215(2) and (3)

[33] Section 215 (1) Every one is under a legal duty

(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if

(a) with respect to a duty imposed by paragraph (1)(a) or (b),

(ii) the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently

(3) Every one who commits an offence under subsection (2)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years

[34] It is important to take note of the fact that Parliament has increased the maximum sentence for this offence, consequently, when considering sentencing ranges imposed for this offence, sentences from years ago may not properly reflect the range of sentences to be imposed now. As was noted in R. v. Friesen, 2020 SCC 10, when Parliament increases the penalty for an offence, it is a signal that such offences should now receive higher sentences, the court stated at para. 87:

Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament "wanted such offences to be punished more harshly" (Lacasse, 2015 SCC 64, at para 7). An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for an offence.

[35] I was not provided many cases by counsel respecting this offence. Currently, the maximum sentence, where the Crown proceeds by indictment, is five years. In a recent case, R. v. A.L., [2022] O.J. No. 6074 (OCJ) Justice Green, after reviewing six cases between 2005 and 2020 [1] commented respecting the sentencing range revealed by these decisions:

In my view, the vast majority of cases involving parents failing to provide the necessities of life to their young/infant children involve some kind of jail sentence. In all cases where a child died as a result of the parental neglect, penitentiary sentences were imposed. Longer jail sentences were also imposed where there was intentional abuse in addition to parental neglect. Generally speaking, the longer the period of neglect and the greater the harm suffered by the victim, the longer the sentence. Shorter sentences, and at times conditional sentences, were imposed where the child suffered bodily harm but made a full recovery.

[36] A.L. was a case involving J.M., a 26 ½ month child who only weighed 3.84 kgs at the time of state intervention. At the time CAS became involved as a result of the father (M.M.) contacting Telehealth because of concern his daughter was underweight and was not talking or walking and his wife A.L. was suffering from anxiety and depression. In fact, J.M. was so malnourished that she could not walk, talk, stand or roll over. J.M. had delays in every aspect of her life and was suffering from what is referred to as a failure to thrive as a result of her chronic malnutrition. Photographs of J.M. from the date she was admitted to hospital portray a very sick and emaciated child, with no fat or muscle on her. Every bone was visible and in places her limp and dehydrated skin sagged around her bones. J.M.'s skin was dry and peeling in places. To anyone even glancing at J.M., her malnutrition would have been obvious. J.M. spent 54 days in hospital when she was first seen at Sick Kids. A.L. was the main care giver and all parties agreed the father worked long hours and was often not in the house. The neglect and abuse went on for approximately seven months during which time she was losing weight, although J.M. had not been seen by a doctor for 21 months.

[37] The Crown in A.L. sought a conditional sentence of two years less a day and the defence sought a suspended sentence and probation. Justice Green imposed a ten month conditional sentence. The husband was sentenced to an eight month conditional sentence. R. v. M.M., [2020] O.J. No. 6078 (OCJ) J.M. was doing very well at the time of sentencing, she was in the care of A.L.’s mother and both A.L. and M.M. were working with CAS, receiving counselling, and working towards being reunited with their daughter, J.M.

[38] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 explained:

…The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

[39] The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko 2010 ONCA 452, [2010] O.J. No. 2583, where at paragraph 90, the court held:

Sentencing 'ranges' ...are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality... Individual circumstances matter.

[40] In R. v. D.D., [2002] O.J. No. 1061 (C.A.), Moldaver J. (as he then was) said the following, at para. 33: “[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.”

[41] This issue has been revisited by the Supreme Court of Canada in R. v. Lacasse, supra, at paragraphs 57 to 58 and 60 to 61, where the Court held:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered 'averages', let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case...

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 44.)

In other words, sentencing ranges are primarily guidelines, and not hard and fast rules. (Emphasis added)

Principles of Sentencing

[42] In determining an appropriate sentence for M.R., regard must be had to the sentencing objectives set out in s. 718 of the Criminal Code, which provides as follows:

718 The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to “victims”, or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

[43] Pursuant to s. 718.01, when a court imposes a sentence for an offence that involves the abuse of a person under 18 years of age, it “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” The Supreme Court of Canada recently in R. v. Friesen, 2020 SCC 10, [2020] S.C.J. No. 100, recognized Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code, confirmed the need for courts to impose more severe sanctions for sexual offences against children. The words “primary consideration” in s. 718.01 prescribes a relative ordering of the sentencing objectives set out in s. 718 (a) through (f) (see Friesen, at para. 102). However, the section should not be interpreted as limiting other sentencing objectives, such as separation from society, which reinforces and gives practical effect to denunciation and deterrence (see Friesen, at para. 103 and Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.), at para. 76).

[44] The Supreme Court did indicate that “where Parliament has indicated which sentencing objectives are to receive priority in certain cases, a sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority,” although, “the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality” (see Friesen, at para. 104). In Friesen, at para. 105, the Court held, “Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause.”

[45] Ms. Villamil for the Crown submitted the Ontario Court of Appeal has been emphatically clear that it would be an error in principle to fail to give primary consideration to the objectives of denunciation and deterrence by unduly focusing on the offender's mitigating factors and the impact that a particular sentence will have on them. In R. v. Lis, [2020] O.J. No. 3733 (C.A.), at paras 47 and 48, the Court of Appeal underscored that:

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": Friesen, at paras. 101-102.

48 The enactment of s. 718.01 also qualifies the previous direction of the Supreme Court that it falls to the sentencing judge to determine which sentencing objectives are to be prioritized. 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: Friesen, at para. 104; R. c. Rayo, 2018 QCCA 824, at paras. 103, 107 and 108.

See also R. v. T.J., [2021] O.J. No. 3128 (C.A.), at para. 15; R. v. B.M., [2023] O.J. No. 1575 (C.A.), at paras. 13 to 16; and R. v. Bertrand-Marchand, 2023 SCC 26, [2023] S.C.J. No. 26, at para. 123.

[46] Ms. Villamil also provided me with R. v. M.A.C., 2023 ABCA 234, the Alberta Court of Appeal applied the principles and sentencing reasoning of Friesen to the physical abuse of children, writing at para 49:

While Parliament has not increased the sentences for common assault and assault with a weapon or by choking, we continue to develop a greater understanding of the harm caused to children, families and society by offences committed against children. Even in non-sexual assault cases, acknowledging this harm reminds sentencing judges to appropriately assess the gravity of any offence against children when determining a proportionate sentence..."

[47] The "fundamental principle" of sentencing pursuant to s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

See also R. v. Priest, [1996] O.J. No. 3369, at para. 26.

[48] A sentencing judge must also have regard for the provisions of s. 718.2, which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances; the combined duration of consecutive sentences not be unduly long; an offender not be deprived of liberty if less restrictive sanctions may be appropriate; and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[49] A number of mandatory statutorily aggravating circumstances are set out in s. 718(2)(a), which clearly arise in cases involving the abuse of children and impose:

(ii) that the offender, in committing the offence, abused the offender's intimate partner or a member of the victim or the offender's family,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years.

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[50] At the heart of the purposes and principles of sentencing set out in subsections 718.01 and the statutorily aggravating circumstances set out in section 718.2(a) is the overriding goal of protecting the most vulnerable members of our community; namely, our children. Consequently, in M.R.’s case, the abuse of B.L., the sentencing principles of denunciation and deterrence are clearly the primary and paramount sentencing principles to be considered.

[51] I recognize while the primary consideration in sentencing when imposing a sentence for an offence involving the abuse of a person under the age of eighteen years, must be given to the objectives of denunciation and deterrence, both specific and general, the Supreme Court of Canada in Friesen and the Ontario Court of Appeal in Lis and other cases have also held the sentencing principles of rehabilitation and restraint remain important goals with any sentencing particularly in a case involving an individual with no criminal record.

[52] I am also mindful of the principle of restraint reflected in R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, where the Ontario Court of Appeal held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

[53] In serious cases and cases involving violence towards children, rehabilitation alone cannot be the determinative factor – general deterrence and denunciation were also significant factors to be considered – now recognized by s. 718.01 as the “primary consideration.” However, as the Ontario Court of Appeal ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

[54] Of course, I must always consider the sentencing principle of rehabilitation, particularly given M.R. is a first offender, however, any sentence imposed must be grounded in the facts of M.R.’s case and be proportionate to the gravity of the offences committed by M.R. and his moral culpability or blameworthiness.

[55] Before addressing these issues, it is necessary to identify both the aggravating and mitigating circumstances present in M.R.’s case.

Aggravating and Mitigating Circumstances

Aggravating Circumstances

[56] The following are the aggravating circumstances present in this case:

1. M.R. was in a position of trust respecting B.L. as he was her stepfather, s. 718(2)(a)(iii).
2. M.R. committed the offences against a child, s. 718(2)(a)(ii.1).
3. M.R. committed these offences against a member of his family, s. 718(2)(a)(ii).
4. The offences would have had a great impact on B.L., considering her age and in light of the findings in Friesen, s. 718(2)(a)(iii.1).
5. The offences occurred in her home where she was entitled to feel safe.
6. B.L. was a vulnerable 7 year old child who was dependent on her father and mother.
7. The conduct engaged in by her mother, S.L., occurred for about a year according to B.L., and M.R. admits to being fully aware of S.L.’s behaviour and abuse of B.L., yet did nothing. The time period over which the abuse and neglect of B.L. took place is seriously aggravating.
8. The nature of the abuse and neglect towards B.L., when contrasted with S.L.’s and M.R.’s interaction towards and with the other two children increases the serious negative impact on B.L.
9. M.R. physically assaulted B.L. on a number of occasions, using a belt to strike her on the buttocks, and on one occasion removed her clothes and took a photograph to show her the marks. He also slapped her on an occasion with such force that her head struck the wall, causing her lip to split open and bleed, which M.R. cleaned up using B.L.’s hooded towel.
10. M.R. having B.L. remove her clothes to take this photograph was certainly a serious affront to her personal integrity and dignity.
11. Although a Victim Impact Statement was not provided by the Crown, there can be no doubt that the prolonged nature of the abuse and neglect in terms of forcing B.L. to stand when filling out the behaviour worksheets, only receiving one bowl of oatmeal daily (and sometimes not even one), being reprimanded for taking food without asking, not being allowed out of her bedroom, not being allowed to be involved in normal child activities with her siblings or her parents – as examples, the full impact of this abuse and neglect cannot be fully appreciated or known but the foreseeability of psychological trauma in the future for B.L. in my view is also an aggravating circumstance.

Mitigating Circumstances

[57] The following are the mitigating circumstances present in this case:

1. M.R. always intended to enter guilty pleas respecting his role as a party to the offence of fail to provide necessaries of life and his assaultive conduct towards B.L. and has done so.
2. Complete acceptance of responsibility with no effort to minimize his conduct towards B.L. or his knowledge and involvement in and with the criminal behaviour by his common law wife, S.L. towards B.L. His remorse, shame and sorrow for what he did to B.L. is sincere and genuine.
3. His guilty plea is consistent with his conduct prior to being charged by the police. He went with the SMFC (CAS) child worker, Kathleen Fox, to the hospital with B.L. He expressed gratitude to Ms. Fox for the SMFC intervention. He told her of ongoing worry and a feeling of helplessness given he was not B.L.’s biological parent. He was worried S.L. would take the kids from him and then he would not be able to protect them at all. He told her he was not home much because of his work hours and struggled to address these things when he was not there. He told her he was burdened with supporting the family financially and also with these concerns. Ms. Fox observed him demonstrate love, affection, care and attentiveness towards B.L. while at the hospital. He also expressed remorse and that he had made mistakes. He was concerned B.L. would die. According to Ms. Fox, he was tearful throughout the day. He provided the photograph of B.L. taken two days before to Ms. Fox, which is Exhibit 4.
4. He cooperated fully with the police and provided a statement to police admitting his role and involvement in B.L.’s condition. His statement was completely inculpatory. It is the Crown’s intention to call M.R. as a witness at S.L.’s trial. He provided the police investigators with inculpatory text messages between himself and S.L. He also voluntarily gave his cell phone to the police and provided his password.
5. M.R. was assessed by Dr. Julian Gojer and found not to be suffering from any mental illness. His offending in relation to B.L. is related to passivity, lack of assertiveness and low self-esteem that prevented him from speaking up and ensuring B.L. and the other children were appropriately cared for. Dr. Gojer indicated in his report M.R. did not make excuses but takes responsibility for his role in the child’s and other children’s parenting. He has engaged in counselling to address the lacunae of his personality and is doing well in treatment. He is gainfully employed and is a prosocial man. His risk to his children is very low or non-existent. This is a significant mitigating circumstance.
6. M.R. has been involved in counselling and therapy with Caroline Kerjikan, MSW, RSW, a Social Worker in Forensic Practice. He completed 13 sessions between September 2023 and February 2024 and four (4) booster sessions between May and August 2024. Ms. Kerjikan does not do long term counselling, so she has referred him for long term counselling to both group and individual counselling.
7. On November 30, 2022, M.R., with Ms. Fox’s approval, made arrangements for him to stay at his cousin’s, D.M., with his two youngest children. Arrangements were made for D.M. to drive B.L. to M.R.’s mother, M.M.’s house to stay with her and for M.M. to take B.L. to The Hospital for Sick Children SCAN clinic the next day. Ultimately, M.M. was given custody of all three children. Since January 2023, M.R. has been living at his mother’s house with his three children, when he is under the direct supervision of M.M., with SMFC’s approval and consent. The report of Ms. Fox and the letter and affidavit of the SMCF child protection worker, Danielle Colangelo, who is overseeing the agency’s protection application respecting the three children: B.L., B.R. and E.R. reveal the positive changes in M.R.’s role as a father, who has taken responsibility for his actions and inactions, has addressed the agency’s concerns by taking counselling and demonstrating genuine remorse.
8. M.R. has been gainfully employed in the construction industry since leaving high school at the age of 17 years. His current employer is aware of the charges M.R. is facing. Since living with his mother, he contributes approximately one half of the monthly income towards the expenses of the household, see Tab 11 in Exhibit 6. He currently works five days a week in construction. Currently, M.M. is recovering from surgery, which has resulted in a reduction of her income.
9. M.R. has strong family support from his mother and sister, S.R.L., who he is very close with and with his cousin, D.M. He also has a close family friend in G.S., and his son, P., who is M.R.’s best friend. This is confirmed in their letters found in Exhibit 6. This support is a mitigating circumstance.
10. He has no criminal record.

Determination of a Proportionate Sentence

[58] Even though denunciation and deterrence are the paramount considerations in a child abuse case, restraint remains an important principle. In R. v. Faroughi, 2024 ONCA 178 at para. 73, the Court of Appeal clarified that:

Nevertheless, conditional sentences can be appropriate in circumstances where denunciation and deterrence are the predominant sentencing objectives, as such a sentence with punitive conditions can provide a significant amount of denunciation and deterrence. And the restraint principle continues to be applicable in circumstances where, like in this case, the primary sentencing principles are denunciation and deterrence. This court has recognized that, in some exceptional circumstances, a conditional sentence may be fit for an offender convicted of sexual offences against children. [citations omitted and emphasis added]

[59] As I have indicated, these offences are serious and merit a denunciatory sentence. In my view incarceration in a custodial facility is not the only means to these sentencing goals. In R. v. Sharma, 2020 ONCA 478, [2020] O.J. No. 3183 at para. 110, the Ontario Court of Appeal emphasized that a conditional sentence:

...serves the functions of deterrence and denunciation: Proulx, at paras. 41, 67. Indeed, conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35.

[60] The Crown has submitted that an eighteen month to two year less a day sentence is the appropriate sentence to be imposed in this case in order to properly address the sentencing principles of denunciation and deterrence. In light of this position, I must consider the appropriateness of a conditional sentence pursuant to s. 742.1 of the Criminal Code.

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 [general sentencing provisions];

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence under any of the following provisions:

(i) section 239, for which a sentence is imposed under paragraph 239(1)‍(b) (attempt to commit murder),

(ii) section 269.‍1 (torture), or

(iii) section 318 (advocating genocide); and

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;

1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1; 2012, c. 1, s. 34; 2022, c. 15.

[61] In R. v. Proulx, supra, at para. 22, the Supreme Court held a conditional sentence is a "punitive sanction capable of achieving the objectives of deterrence and denunciation." In para. 127, #8, the Court held:

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. [Emphasis added]

[62] A conditional sentence is in principle, although not always in practice, available for all offences where the prerequisites are met, no specific or category of offence is presumptively excluded from the conditional sentence option: R. v. Proulx, supra, at paras. 79-81 (see also R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583 (C.A.), at para. 69). Therefore, a conditional sentence, depending on the severity of the conditions, may nonetheless be consistent with the fundamental purpose and principles of sentencing, even where deterrence and denunciation are the predominant sentencing principles (see Jacko, supra, at para 71).

[63] Lamer C.J., in Proulx, supra, at para. 100, explained that a conditional sentence can achieve both punitive and restorative sentencing objectives:

To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstance.

[64] The principle of restraint set out in s. 718(2)(d) and (e) has taken on a new prominence as a result of the introduction of conditional sentences pursuant to s. 742.1. In R. v. Gladue, [1999] S.C.J. No. 19, at para. 40, Cory J. said:

...The availability of a conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only when no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(e) must be construed and applied in this light.

[65] In my view it is important to note that the most recent iteration of s. 742.1 has returned to the form and content of the original provision created by Parliament in 1996, when conditional sentences were first introduced. A conditional sentence is a custodial sentence where the accused is permitted to serve his jail sentence in the community with restrictive provisions such as house arrest with only certain exceptions, dependent on the individual and unique circumstances of the offender being sentenced. It is open to a sentencing Judge, where the pre-requisites are met, to impose a conditional sentence in respect of the vast majority of offences.

[66] There are in my view unique mitigating circumstances present in this case. The first relates to the different roles played by S.L. towards her daughter and M.R.’s role. S.L. was the primary care giver, and she was B.L.’s biological parent, a fact that she repeatedly advised M.R. of. She often threatened to prevent him from having any contact with B.L. She created the behaviour worksheets and determined B.L. should only receive one bowl of oatmeal each day.

[67] There can be no doubt that the two incidents of assaultive behaviour perpetrated by M.R. towards B.L. were seriously aggravating. The only saving aspect of this conduct is that it did not result in serious or long lasting injury. An interesting piece of evidence from the events of November 30, 2022, was when B.L. asked Ms. Fox which of her parents was coming with them to the hospital and she was advised it was her father to which she responded, “Yay he is my favorite parent.” B.L. also told Ms. Fox on this first day that it’s “different when daddy is home”, that she “likes seeing him every day” and it is “more exciting to have a dad than a mom.” Ms. Fox saw M.R. interact with B.L. at the Soldiers Memorial Hospital in Orillia and described him as demonstrating love, affection, care, and attentiveness towards B.L. that day. He expressed remorse for his conduct, he made mistakes. He was concerned B.L. would die because of S.L. He provided Ms. Fox of the photograph, Exhibit 4, which clearly shows the malnutrition experienced by B.L. He told Ms. Fox of his ongoing worry about B.L. but also his feeling helpless given he was not B.L.’s biological parent. How he worried S.L. would take the children away from him and then he could not protect them.

[68] The Crown acknowledged in her submissions the significant mitigating factors present in respect of M.R. She cited many of the mitigating circumstances I related in these reasons. Probably the most significant was his different role in the fail to provide necessaries of life for B.L. Ms. Villamil recognized S.L. repeatedly told him she was the biological parent, putting pressure on him that only she had a say in what happened to B.L. Routinely indicating to M.R., she would not allow him to have contact with B.L.

[69] When one adds to this M.R.’s passivity, his lack of assertiveness, and low self-esteem, which prevented him from speaking up and ensuring that B.L. and the other children were properly cared for. It is my view these personality characteristics and traits of M.R. lessen to some extent M.R.’s moral blameworthiness. It does not lessen the seriousness of the offences perpetrated by M.R. but it is significant in my view that he does not attempt to excuse his lack of saying anything because of this or even blame his passivity in an attempt to justify his inaction. Rather, he admits his actions and inactions completely, on November 30, 2022, when SMFC first became involved. He then admits everything to the police respecting his criminality. This results in his being charged.

[70] In my view it is also significant that SMFC attending their home on November 30, 2022, is as a result of M.R. rushing home to his mother’s and telling her of his concern as to what S.L. was going to do to B.L. by not feeding her until she deserved it and his mother calling his sister to tell her and then S.L.R. calling CAS anonymously and as a result CAS coming to their home to see B.L. and investigate her condition. His disclosure to his mother led to the CAS involvement and ultimately led to B.L. being apprehended and taken into care. There can be no doubt that M.R. should have called earlier himself, but the fact remains he did call and do something. He even told Ms. Fox of SMFC that he was grateful for their intervention.

[71] A further mitigating circumstance that stands out is the efforts made by M.R. and that he continues to make to engage in counselling to better understand his inability to reveal what B.L.’s mother was doing to her. It is clear he is doing everything within his power after B.L.’s abuse and neglect was revealed to work with SMFC towards the goal of his regaining custody of his three children. According to the reports, letters and affidavit of the SMFC child protection workers, M.R. is well on the path to this goal being realized. In fact, for the past almost two years he has been living in his mother, M.M.’s residence with B.L. and his two other children, B.R. and E.R. The agency has agreed to supervised access to his children, as ensured by M.M. and regularly confirmed by the agency. B.L. is attending school, she is thriving in the home she now resides in, and is experiencing the safe home she should have been experiencing before.

[72] As indicated in the affidavit of Danielle Colangelo, Tab 13, Exhibit 6, although S.L. engaged in counselling with Catholic Family Services of Simcoe and completed 16 telephone sessions, she “did not take responsibility or had any insight into her role in harming the children” and the sessions were focused “on the parents’ relationship and the stress of having child welfare and criminal involvement.” She has not addressed any of the concerns respecting her mental health or her role in harming her children. As a result, it is the “Society assessment that S.L. has not demonstrated insight or acknowledgement with respect to the risk of harm that was the cause by her actions and has not sought adequate supports to address the protection concerns.” This has meant that S.L.’s parenting time remains fully supervised by the agency.

[73] A further consideration, based on the materials presented, is that if M.R. were to be incarcerated in a custodial facility, his contribution to the financial expenses would cease. It is my view this would be detrimental to the continued success of B.L.’s recovery and progress. M.M. indicates in her letter that she is recovering from surgery, which has led to a reduction in her contribution towards the household’s finances. M.R. currently is contributing half of the income required to support this family. A conditional sentence would mean M.R. could not continue his employment and could not continue providing financially for his mother and children in terms of their expenses. It is my view this would an extremely detrimental impact of B.L., her grandmother and the other two children, as well as M.R. in terms of interfering with his continued rehabilitation towards the goal of goal of reuniting him with his children.

[74] It is precisely because of the exceptional and unique mitigating circumstances present in this case that in my view M.R. should serve his jail sentence in the community and not in “real jail.” It is my view a two year less a day conditional sentence will properly address and give primary consideration to denunciation and deterrence, particularly when he will be subject to very restrictive house arrest with GPS monitoring, which will be part of the sentence I will be imposing for the first 18 months.

Released: October 23, 2024 Signed: Justice Peter C. West

[1] R. v. Lis, [2020] O.J. No. 3733 (C.A.); R. v. S.J., 2015 ONCA 97; R. v. N.J.H., [2020] S.J. No 120 (Sask. Prov. Ct.); R. v. S.H., 2015 ONSC 2050, [2015] O.J. No. 1862 (SCJ); R. v. D.E., [2005] O.J. No. 2589 (SCJ); and R. v. T.T., [2012] O.J. No. 3603 (SCJ).