ONTARIO COURT OF JUSTICE

DATE: 2025-03-25
COURT FILE No.: Hamilton 4711 998 22 47100974

BETWEEN:
His Majesty the King
— AND —
R.H.

Reasons for Sentence

Before Justice Davin M.K. Garg
Heard on March 3 and 25, 2025
Reasons released on March 25, 2025

Gloria Huh — counsel for the Crown
Geneviève Eliany — counsel for the offender

Overview

[1] This case requires me to fashion an appropriate sentence for a mother who abused her son over a nearly three-year period by striking him with various kitchen utensils. The assaults started when the child was one-and-a-half years old and continued until he was four. After trial, the parties jointly proposed a suspended sentence with probation for three years. The proposed sentence fails to reflect the offender’s moral blameworthiness, the child’s vulnerability at the time of the offence, and the harmfulness of the offender’s conduct. Imprisonment is required. For the reasons that follow, I impose an 18-month conditional sentence followed by two years of probation.

Authority to impose a higher sentence

[2] The decision of R. v. Anthony-Cook, 2016 SCC 43 is well-known. That case sets out a judge’s limited discretion to “jump” a joint sentencing submission following a guilty plea.

[3] The Ontario Court of Appeal recently held that Anthony-Cook is limited to guilty pleas and does not apply after trial: R. v. Wesley, 2025 ONCA 51 at paras. 70-87. By pleading guilty and presenting a joint submission, the offender is saving court resources in return for near certainty on what sentence they will receive. The sentencing judge is also often unaware of weaknesses in the Crown’s case and other factors motivating the Crown to offer a lenient sentence. These considerations do not apply post-trial. I have heard the case and decided its strength—the Crown proved the charge beyond a reasonable doubt. As the Court of Appeal held in Wesley at para. 84:

… trial judges are in a far better position than after a guilty plea to assess the fitness of a proposed sentence. It is ultimately trial judges and not counsel who bear the heavy responsibility of imposing a fit sentence. Absent the kind of quid pro quo present where the accused agrees to plead guilty in exchange for a joint submission, I am not persuaded that policy considerations justify constraining trial judges’ sentencing discretion by imposing the stringent Anthony-Cook test for departing from a joint recommendation made following a trial.

[4] While Anthony-Cook does not apply, I nonetheless put the parties on notice that I was considering a more severe sentence. I gave notice well before the sentencing hearing so that counsel could make informed submissions. I re-stated my concerns at the end of their submissions and adjourned the hearing to permit further argument.

General principles

[5] The goal of any sentence under the Criminal Code is to protect society, contribute to respect for the law, and help maintain a just, peaceful, and safe society. The fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence and the offender’s degree of responsibility. The sentence that I impose must be tailored to the offender’s circumstances and the circumstances of the offences that she committed.

[6] The court must give primary consideration to denunciation and deterrence when sentencing an offender for child abuse.[1] As the Supreme Court emphasized in R. v. Friesen, 2020 SCC 9 at para. 1, children are the future of our country. They are also among the most vulnerable members of our society. They deserve to enjoy a childhood that is free of violence and abuse—especially from their own parents. Protecting children and their interests are central humanitarian and compassionate values in Canadian society: Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699 at para. 67.

Circumstances of the offender

[7] The offender is now 31 years old. She is the victim’s mother. The offender was born in Guyana and is a Canadian citizen. She has four children in total; the victim is the oldest. I will address the offender’s circumstances in greater detail when analyzing the mitigating circumstances.

Aggravating factors

[8] I have identified the following aggravating factors.

Pattern of conduct

[9] The one count of assault with a weapon encompasses a pattern of assaultive conduct: see Friesen at paras. 131-133. I was satisfied beyond a reasonable doubt that the offender assaulted the victim on multiple occasions over a period that almost spanned three years. She struck the victim with various kitchen utensils, including a spatula.

Abusive conduct

[10] In her submissions on the final day of argument, defence counsel distinguished between cases of child abuse and cases of excessive discipline. Counsel characterized this case as an example of excessive discipline, which ought to attract a lower sentencing range: see R. v. F.B., 2018 ONCJ 235 at para. 23.

[11] I find that “abuse” is the accurate label in this case. Key to this finding is that the offender: (i) used objects as weapons to strike the victim; and (ii) struck the victim out of anger. In this situation, the offender’s actions went well beyond the exercise of excessive discipline by an immature parent unskilled in matters of childcare. A more severe sentence is thus appropriate: F.B. at para. 24.

Impact on the victim

[12] Section 718.2(a)(iii.1) deems it aggravating that an offence had significant impact on the victim considering their age and personal circumstances; see also R. v. A.G., 2015 ONCA 159 at para. 73. I find that the offence profoundly impacted the victim. I received his impact statement. It is heartening to see that the victim is doing well in many ways. But his resolve to lead a happy life does not detract from the negative impacts of the offender’s actions. The victim’s testimony allows me to make findings about the impact: R. v. Cook, 2017 ONSC 1434 at para. 39. The severe emotional and psychological effect on the victim was obvious. He told the court that certain questions upset him because counsel “did not know the pain that I went through”. He later added, “I might forget certain details [of the abuse], but I’m never going to forget what she has done”. The impact statement also discloses how the victim remains scared of running into the offender.

Breach of trust

[13] There are three statutorily aggravating factors that are convenient to address together, although they qualify as separate aggravating factors. The offender abused her son—a member of her family: s. 718.2(a)(ii). The victim was young—the abuse started when he was one-and-a-half years old and continued until he was four: s. 718.2(a)(ii.1). And the offence constituted an invasive breach of the victim’s trust given the mother-son relationship: s. 718.2(iii).

Absence of mitigating factors

[14] Some mitigating factors are absent in this case, and I find that certain other factors should not be treated as mitigating.

Not a guilty plea

[15] I am sentencing the offender after trial. It is not aggravating that the offender exercised her constitutional right to a trial and required the Crown to prove its case. But a guilty plea in this case would have been significantly mitigating. A plea would have saved the offender’s young son from the trauma of testifying in court against his mother. To be clear, the decision to run a trial simply means that the offender does not benefit from the mitigation of a guilty plea.

[16] The offender has also not expressed remorse for the offence, which works against her rehabilitative potential.

Harm from CAS involvement

[17] I understand that allegations of the offender perpetuating child abuse led to CAS involvement in her life for many years. Some of those allegations are now established facts based on my findings in this case. CAS involvement caused the offender to be separated from or have reduced access to her children. For example, I am told that the current charges contributed to the offender not living with her two youngest children (neither of whom is the victim).

[18] Defence counsel emphasized how the offender’s separation from her children caused her significant harm. I have no doubt about this fact. It must be painful for the offender to see her children grow up without having a significant role in their lives.

[19] But I decline to consider the harm suffered by the offender as a mitigating factor. The harm caused by CAS involvement neither speaks to the gravity of the offence nor the offender’s degree of responsibility: see R. v. Suter, 2018 SCC 34 at para. 48.

[20] Rather, the harm suffered by CAS involvement is a collateral consequence that relates to the offender’s personal circumstances. Collateral consequences can arise from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence: Suter at para. 47.

[21] I decline to modify the sentence by virtue of this collateral consequence. When a parent is alleged to repeatedly abuse their child over an extended time, it is inevitable that the CAS will intervene. This collateral consequence plays a greatly diminished role at sentencing because it is so directly linked to the nature of the offence: Suter at para. 49. Giving effect to this collateral consequence would disrupt the imposition of a proportionate sentence on parents who abuse their children. Counsel argued that the CAS intervention in this case exceeded reasonable expectations. I do not know every reason that led the CAS to act as they did, and I cannot say whether their involvement went beyond what the allegations would usually precipitate.

[22] I will, however, address how CAS involvement has led the offender to improve her parenting skills.

Mitigating factors

[23] I have identified the following mitigating factors.

Offender’s improvement

[24] Defence counsel argued that the offender has made positive developments since committing the offence. The evidence presented on this issue did not always assist. Rather than providing information at large, counsel should focus on presenting admissible evidence that helps resolve the relevant issues. For example, counsel explained how the offender’s second youngest child is doing well in school. But this child does not live with the offender, and the offender has a limited role in the child’s life. I thus cannot draw a meaningful connection between the child’s well-being and the offender’s parenting.

[25] Despite the evidentiary frailties,[2] I am satisfied that the offender has made some progress since the offence ended in October 2018. What I take from the summaries of defence counsel’s interviews with people in the offender’s orbit is that the offender cares about her two youngest children, asks questions about their well-being, and helps pay their expenses. And while the harm to the offender from CAS involvement will not influence my sentence, it is relevant that the offender learned lessons during this difficult period away from her children. The offender has completed multiple parenting programs. One report from the John Howard Society indicates that the offender actively participated in the Community Anger Awareness Program. These difficult years along with the offender’s progress attenuates the need for a harsh sentence to accomplish specific deterrence: see R. v. Espina, 2020 ONSC 6342 at para. 40.

First offender with employment history

[26] The offender does not have a criminal record. The trial evidence also indicates that she has been employed as a personal support worker. These facts speak to the offender’s rehabilitative potential and her ability to contribute positively to society. I also find it relevant that the offender has lost employment opportunities due to the charges and could face employment challenges going forward.

Youthful offender

[27] The offender was a young adult at the time of the offences. I also find that she was under stress. She was a working mother. She found moving back home challenging. There might have been some tensions between the offender and her mother given the status of the offender’s relationship with the victim’s father.

Imprisonment is required

[28] I will explain why I must impose a harsher sentence—i.e., imprisonment—than the proposal for a suspended sentence: see R. v. Nahanee, 2022 SCC 37 at para. 59 (ii).

[29] First, a non-custodial disposition is disproportionate to the offender’s moral blameworthiness and the harmfulness of her conduct. The assaults occurred over a prolonged period. The offender should have inherently understood that her conduct was wrong. Lest she had any uncertainty, people brought the wrongfulness to her attention. For example, the sisters who witnessed the abuse told the offender that she could not strike the victim. In addition, the CAS was involved on-and-off providing parenting strategies throughout the offender’s motherhood.

[30] Second, I must impose a sentence that emphasizes denunciation and deterrence: s. 718.01. I choose to prioritize denunciation and general deterrence while placing slightly less emphasis on specific deterrence. I have not lost sight of rehabilitation for this young first offender. But it assumes less priority given the seriousness of the offence. Even for youthful first offenders, “very serious offences and offences involving violence” are excluded from the principle that sentences for first offenders should emphasize specific deterrence and rehabilitation: R. v. Tan, 2008 ONCA 574 at para. 32.

[31] Child abuse often occurs behind closed doors. When the abuse is made public, the courts must send a message that protection of children will be the predominant concern. Repeated abuse of a child is an assault on their dignity and self-worth. The abuse causes physical and psychological harm with real potential for long-term effects. The abuse in this case exposed an innocent child to harm at the hands of the very person who was meant to protect him. The emotional anguish and distress that he suffered was palpable as he testified before me.

[32] Third, the aggravating factors outweigh the mitigating factors. The gravity of the offence and the offender’s degree of responsibility are elevated. There are many ways to commit assault with a weapon. The offence before me falls at the serious end of the spectrum: a grave breach of trust from assaulting a very young child over many years. The offender’s status as a first offender is somewhat diluted by the repetitive nature of the abuse, because the offence cannot be described as an out-of-character one-off event.

[33] Fourth, the jurisprudence supports a custodial sentence: see R. v. J.K., 2021 ONCJ 226 and R. v. Ossetchkine, 2021 ONCA 698 where courts ordered imprisonment for child abuse.[3] The Crown provided the decision of R. v. R.P., 2023 ONCJ 299, wherein Wright J. sentenced the offender to three years in the penitentiary. The facts in R.P. are undoubtedly more serious. The victim suffered multiple physical injuries, including serious burning to his pubic area and scrotum from a heating implement. But there are also features of the present case that are more serious: the offender is the victim’s mother, whereas the offender in R.P. “was standing in as a parent” (para. 17); the abuse here occurred over multiple years, whereas the abuse in R.P. lasted five months (para. 6); and the victim here was even younger than the victim in R.P. (para. 5).

[34] While these details are relevant, they should not mask the bigger picture. The offender in R.P. received a penitentiary sentence. The parties in this case propose a suspended sentence. That gulf is too wide. A non-custodial sentence would be disproportionate and offend the principle that similar sentences be imposed on similar offenders for similar offences committed in similar circumstances.

[35] The cases provided by the defence do not compel me to impose a non-custodial disposition. Some of them are not binding on me because they were rendered outside Ontario. The cases are distinguishable in any event:

• R. v. Espina, 2020 ONSC 6342: the offender pleaded guilty early in the proceedings. Furthermore, the appeal decision does not speak to the fitness of a more severe punishment. Rather, the sentencing judge erred in law by jumping the joint submission on a guilty plea.

• R. c. M.(J.), 2015 QCCQ 2713: the offender pleaded guilty. He also expressed remorse for his archaic corrective methods.

• R. v. Capstick, 2006 NSSC 33: the offence only occurred on one occasion.

• R. v. J.R., 2021 YKSC 50: the victim was considerably older. The judge also put weight on how the offenders were regarded in the community (paras. 50, 89) and seemingly put less weight than I will on how the offences impacted the victim.

• R. v. F.B., 2018 ONCJ 235: the offender pleaded guilty. He expressed remorse and responsibility for his actions. He showed “exemplary” improvements in his parenting. He also faced immigration consequences if convicted.

• R. v. C.(Y.J.), 2012 ONCJ 25: the offender pleaded guilty. He committed an assault on one occasion. There were immigration consequences if convicted.

The imprisonment can be served in the community

[36] The next question is whether the term of imprisonment can be served in the community through a conditional sentence order. I am satisfied that it can.

[37] I conclude that: (i) the appropriate term of imprisonment is less than two years;[4] (ii) serving a conditional sentence would not endanger the community; and (iii) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. While the mitigating circumstances did not persuade me to impose a suspended sentence, they do persuade me that a conditional sentence is appropriate.

[38] I must apply the restraint principle. As Doherty J.A. endorsed in R. v. Hamilton, 2004 ONCA 5549 at para. 96:

“Restraint means that prison is the sanction of last resort … Restraint also means that when considering other sanctions, the sentencing court should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction”.

A conditional sentence will encumber the offender’s liberty but is far less intrusive than true incarceration.

[39] While the evidence presented on the offender’s progress was not particularly compelling, I am sufficiently satisfied that the lessons she learned, the programming she took, and the passage of time combine to reduce her risk profile such that a conditional sentence would not put the community at risk.

[40] Finally, I conclude that a lengthy conditional sentence is required. “[T]he more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be”: R. v. Proulx, 2000 SCC 5 at para. 106. To sufficiently denounce the offender’s conduct and promote in her a sense of responsibility, I find that the conditional sentence must be longer than what a carceral term would have been.

Disposition

[41] I impose an 18-month conditional sentence. The offender will be on house arrest for the first 9 months, followed by a curfew for the subsequent 6 months. The house arrest and curfew conditions will have appropriate exceptions.

[42] The conditional sentence is followed by two years of probation.

[43] In terms of ancillary orders, I require the offender to provide a sample of her DNA, prohibit her from possessing weapons for 10 years under s. 110 of the Criminal Code, and give her time to pay the $100 victim surcharge.

Released: March 25, 2025
Signed: Justice Davin M.K. Garg

Footnotes

[1] Section 718.01 directs the court to give primary consideration to denunciation and deterrence when sentencing for an offence that involved the abuse of a person under eighteen years old.

[2] Defence counsel resisted the ordering of a pre-sentence report. When the court signaled a desire to order one, counsel indicated that she would advise the offender to not participate in the process. No report was ordered.

[3] A conditional sentence remains a sentence of imprisonment, albeit one served in the community.

[4] I would have reached this conclusion even if a penitentiary sentence was legally available.