ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

JAMIE ALLAN OBEN

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE M. G. ELLIES

on February 22, 2013, at SAULT STE. MARIE, Ontario

APPEARANCES:

N. Komsa/D. Peterson Counsel for the Crown
V. Christie Counsel for J. Oben

ONTARIO

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

Reasons for Sentence – Ellies, J. Page 1

Transcript Ordered: February 22, 2013
Transcript Completed: February 25, 2013

Friday, February 22, 2013

R E A S O N S F O R S E N T E N C E

ELLIES, J. (Orally):

Liam Allan Oben died on August 14, 2010, after just 17 days of life. He had been left in the care of his father, Jamie Allan Oben, while his mother went out to run some errands. She was gone for little over half an hour. When she came back, Liam was lying in his crib and Mr. Oben was rubbing Liam’s back. She noticed that Liam’s ears were changing colour and when she picked him up, he went limp in her arms. 911 was called and the parents were instructed to start CPR. When the Emergency Response teams arrived, Liam had no vital signs. He was revived and transported to the hospital. He remained in a comatose state until passing away at 11:37 p.m.

The medical evidence reveals that, while Liam was alone with Mr. Oben, he sustained bruises on his ears, neck, chest and back, two scalp haemorrhages, six skull fractures, subdural haemorrhages, right retinal haemorrhages, optic nerve sheath haemorrhages, and brain damage.

Mr. Oben did not provide any information as to how Liam sustained the injuries to emergency crews or to medical personnel prior to Liam’s death. After Liam’s death, both Mr. Oben and the child’s mother were interviewed on a number of occasions. Mr. Oben said nothing about Liam having banged his head or suffered any other accident while in Mr. Oben’s care.

On January 22, 2010 Mr. Oben was arrested and charged with second degree murder. He has been in custody since that date.

Shortly after his arrest, Mr. Oben was interviewed by police personnel. It was during one of these interviews that Mr. Oben revealed for the first time that when he had been in the washroom with Liam, he dropped his son in the bathtub.

The Crown consulted a number of medical experts, including a neuropathologist, a forensic pathologist, and a paediatrician who is an expert in child abuse. These experts prepared reports and testified at a preliminary hearing. I will return to their evidence later. For now, it is enough to note that their evidence conflicted with Mr. Oben’s assertion that the injuries inflicted upon Liam were the result of an accident.

Mr. Oben was committed to stand trial following the preliminary inquiry. An application to quash the committal was brought before me, which was dismissed.

Following my decision, I was asked to preside over the judicial pre-trial in this matter because of my familiarity with it. The pre-trial was held on two separate dates and eventually resulted in an agreement between the Crown and the defence.

Today, with the consent of the Crown, Mr. Oben entered a plea of guilty to the included offence of manslaughter, based on criminal negligence, as provided for in section 222(5)(b) of the Criminal Code.

The Crown and the defence agree that Mr. Oben must be incarcerated and that the appropriate length of incarceration is six years. They do not agree with respect to the amount of credit he should be given for the time that he has spent in custody leading up to his plea. The Crown submits that he should be given credit on a 1:1 basis only, pursuant to s. 719(3) of the Code. The defence submits that he should be credited at a higher rate, based on the provisions of section 719(3.1), which permits pre-sentence custody to be credited at a maximum rate of 1.5:1, where justified in the circumstances.

My task today requires me to decide not only that issue, but to ensure that the length of sentence suggested properly reflects the principles of sentencing set out in the Code, the circumstances surrounding the commission of the offence, and the circumstances of this particular offender.

I will begin by setting out some of the principles of sentencing applicable to this case.

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 just sanctions that denounce unlawful conduct, deter others from committing offences, assist in rehabilitating offenders, repair the harm done, where possible, and promote a sense of responsibility in offenders.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 of the Code requires that this court take into consideration a number of additional principles specific to the facts, to which I will now turn.

Both s. 718.2 and s. 718.01 make reference to the abuse of a person under the age of 18 years. Where section 718.01 applies, the court is directed to make denunciation and deterrence the primary objectives of sentencing. In my view, section 718.01 applies in this case.

Criminal negligence is defined in s. 219 of the Code as showing wanton or reckless disregard for the lives or safety of other persons by either doing anything or omitting to do anything that it is one’s duty to do. The agreed statement of facts makes reference only to an act, rather than an omission, on Mr. Oben’s part as the basis for his culpability. I agree with the observation made in paragraph 13 of the agreed statement of facts that, by pleading guilty to this offence, Mr. Oben acknowledges that all of the medical evidence demonstrates that Liam’s fatal injuries were not caused by an accidental fall in the bath tub.

Thus, although we will likely never know the exact manner in which the injuries were inflicted, Mr. Oben has admitted that he inflicted them and that they were not accidental. This constitutes abuse, by any definition.

Section 718.2 requires that a sentence should be increased or reduced to account for aggravating circumstances, including evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. Liam was a tiny infant at the time he suffered these horrific injuries. He was at the most vulnerable stage of his short life. Mr. Oben was his father; one of the two people in the world who Liam and everyone else should have been able to trust to properly care for him. It is hard to imagine a more egregious breach of trust than the one that occurred in this case.

Section 718.2 also codifies the long-standing principle that similar offenders should receive similar sentences for similar offences committed in similar circumstances. Although a joint submission made by experienced counsel is entitled to great deference, the principle of parity requires me to consider whether the sentence of six years suggested by both the Crown and the defence, falls within the appropriate range of sentences for this type of offence.

The defence submits that the appropriate range of sentence is between three and six years. The Crown submits that the appropriate range of sentence is between five and seven years. I agree with the Crown.

In R. v. Dyke, [2003] N.J. No. 49, Justice Adams of the Newfoundland and Labradour Supreme Court sentenced a 39-year-old father to five years in prison after he was found guilty of manslaughter following a trial for the murder of his nine-month old daughter. The trial judge found that the accused had thrown the baby on the floor and that she had sustained brain haemorrhages and skull fractures, from which she eventually died. The accused in that case had no prior criminal record.

In R. v. Brake, 2000 NFCA 37, [2000] N.J. No. 198, the Newfoundland Court of Appeal allowed an appeal from a sentence of 18 months and increased the sentence to five years in prison where a 26-year-old father eventually admitted that he had struck his one-month old son. The baby sustained a skull fracture and subdural haematomas and retinal haemorrhages, much like Liam did in this case. Also like this case, the accused in Brake pleaded guilty, but, unlike this case, again, the accused in Brake had no criminal record.

I have also reviewed the decision of this court in R. v. Mendieta, [2011] O.J. No. 935. In that case, the court imposed a sentence of six years after a mother lost her temper and beat her child, who later died with brain and spinal cord injuries. The accused in that case had entered a plea of not guilty.

In R. v. Alexander, [2011] O.J. No. 5500, another Superior Court case, Justice Molloy, after conducting an exhaustive review of the cases, concluded at paragraph 61 of her decision:

These cases demonstrate that typically a sentence of between four and six years will be imposed for a parent who, in frustration or anger, has killed a child by an impulsive act and where there are extenuating circumstances such as deep remorse, mental illness or mental incapacity issues.

As I will point out in a moment, the evidence before me supports an inference that the injuries inflicted upon Liam were inflicted in frustration or anger. There is also some evidence of remorse, but it cannot be considered “deep” in any sense of that word. There is no evidence of mental illness or mental capacity issues. Therefore, in my view, the appropriate range of sentence is higher than that referred to by Justice Molloy.

Where a sentence should fit within a range depends upon the presence or absence of aggravating or mitigating circumstances. Both are present in this case. I will deal with the aggravating circumstances first.

I agree with the Crown that the most aggravating factor is Liam’s extreme vulnerability, closely followed by the fact that Mr. Oben was his father. It is hard for any of us, especially those of us who are parents and grandparents, to conceive of hurting our own children or grandchildren, especially to the extent that poor Liam was harmed in this case. It is heartbreaking to even think about and shocking to see.

I also agree that Mr. Oben’s criminal record is an aggravating factor because it contained convictions for offences of violence, although, thankfully, not against children.

With respect, however, I cannot agree with the Crown regarding Mr. Oben’s silence after the injuries were suffered by Liam. Absent some evidence that Mr. Oben’s silence negatively affected Liam’s chances of recovery, the situation is akin to that of any crime where the perpetrator refuses to admit his guilt, in my view. Such a refusal is not an aggravating factor.

I turn now to a discussion of the mitigating factors in this case.

Mr. Oben is still relatively young. He had a difficult upbringing. In 2009, he finally found a companion, Liam’s mother, with whom the evidence indicates he has a good relationship. Mr. Oben has maintained employment throughout most of his life, despite having only a high school education. These things are not strong mitigating factors, but they are relevant.

Stronger, in my view, is the evidence leading to a conclusion that these horrible injuries were inflicted in frustration or anger. As indicated in the statement of facts, Mr. Oben and Liam’s mother were happy and excited about the prospect of Liam’s arrival. Mr. Oben participated fully in all of the activities associated with Liam’s birth and his care after birth. There is no evidence that Mr. Oben resented Liam or wished him harm in any way, either before Liam’s arrival, or before Liam’s mother left to run errands on that fateful day.

There is also some evidence of remorse in Mr. Oben’s guilty plea, as conceded by the Crown, but I agree that there is little other evidence of remorse.

Nonetheless, I attach particular significance to Mr. Oben’s plea for another reason. As I said earlier, the medical evidence cast doubt on Mr. Oben’s explanation of how Liam came to be injured, but it did not foreclose that explanation completely. Dr. Kepron’s evidence was that Mr. Oben’s explanation was “highly unlikely”, but it could not be excluded. Dr. Ramsay also testified that he was unable to say what caused the impacts. He testified that it could be from blows, or it could have been from two falls, amongst other things. Dr. Shouldice’s evidence was that the extent of the injuries were “highly unusual” for a fall from a caregiver. She testified that the extent of the injuries gave rise to suspicion. Only the injuries to Liam’s ears were completely incompatible with Mr. Oben’s explanation according to Dr. Shouldice. Thus, although the Crown did have a strong case, it was not a foregone conclusion. By entering the plea of guilty, Mr. Oben has avoided what promised to be a very difficult trial and assured the Crown of a conviction. He has also brought closure to this matter.

Taking all of these things into account, I find that the joint submission of six years’ incarceration is a reasonable one from which I would not deviate. The more difficult question is what to do about the time that Mr. Oben has spent in pre-sentence custody.

There has been controversy in the case law with respect to section 719(3) and section 719(3.1). Some courts have held that pre-sentence custody should always be credited at the rate of 1.5:1 in order to treat offenders awaiting a sentence the same as those who have received one.

Our court, the Superior Court, however, has more often held that giving enhanced credit under section 719(3.1) is the exception, rather than the rule. I agree with the statement made by Justice Pattillo in R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710, at paragraph 36 where he said:

In my view, the words: “if the circumstances justify it” in s. 719(3.1) give the court a wide discretion to grant credit for pre-sentence custody above the general rule of 1:1 up to a maximum of 1.5:1 except for the excluded categories of remanded offenders. That discretion must be exercised having regard to the circumstances of the offender being considered as established by the evidence. Those circumstances include but are not limited to the circumstances of the detention, the length of the custody, the conditions during custody, the availability or unavailability of appropriate educational and rehabilitation programs and the effect of such custody on remission and parole eligibility.

Do the circumstances of this case justify enhancing the credit to be given to Mr. Oben for time spent in custody to this point? I believe they do.

It has been recognized by courts many times over the years that pre-sentence custody is “hard time”. That may already be contemplated by section 719(3). What I believe section 719(3) fails to account for, however, and what section 719(3.1) allows this court to consider, is that pre-sentence custody is not the same with respect to every offence. Even in detention facilities, certain offences attract hatred and violence against those who are alleged to have committed them. Killing a baby is one of these offences. There is evidence of the truth of this statement in the present case. In a letter dated February 15, 2013 to Ms. Komsa, the Superintendent of the Algoma Treatment and Remand Centre indicated that Mr. Oben had to be placed in segregation as a result of an administrative decision due to the notoriety of the charges he was facing and for security reasons. It is one thing to suffer such danger once you have been convicted of killing a baby; it is another to live in fear of violence before your guilt has even been determined.

Time spent in segregation is time that I believe should attract enhanced credit under s. 719(3.1). In my view, Mr. Oben’s segregation, even at his own request, should be considered as one factor for which enhanced credit should be given to his pre-sentence custody. Nothing changed in the nature of or the notoriety of the charges between the time that the administrators of the holding facility decided that Mr. Oben needed to be segregated and his own requests for segregation. The danger remained the same. I also question whether Mr. Oben could really have felt free to avail himself of all of the programs that were open to him at the Algoma Treatment and Remand Centre. It is not unreasonable to conclude that Mr. Oben would have been concerned about the effect of attending programs entitled “Anger Management”, “Anti-Criminal Thinking” and a program dealing with violence while awaiting trial with respect to this matter. Indeed, the two programs that he did attend, namely a program on substance abuse and another one on aboriginals were programs that it is reasonable to conclude Mr. Oben thought could not possibly be circumstantial evidence of his guilt.

I agree with the submission made by counsel for Mr. Oben that the restrictions placed on his communication with his common-law spouse also should be taken into account in giving him enhanced credit for his pre-sentence custody. It was not unreasonable for counsel representing Mr. Oben at the time (not counsel before me) to agree to such a term initially. It is common to see such terms imposed by bail courts even after a contested hearing. It was not until later that things were put in place in order to allow Mr. Oben to have contact with his common-law spouse. Unfortunately, he was still unable to communicate with her by telephone even when such telephone communication had been arranged. It was not until July 6, 2011 that supervised visits were put in place.

For these reasons, I believe that enhanced credit should be given to Mr. Oben for pre-sentence custody. However, it is not an “all or nothing” thing.

Section 719(3.1) provides that a maximum of 1.5 days can be given for every day spent in custody. Sometimes, as in this case I believe, something in between 1 and 1.5 is appropriate.

In my view, the proposal made by counsel for Mr. Oben has merit. Therefore, Mr. Oben will be credited with pre-sentence custody at the rate of 1.5:1 from January 22, 2011 to May 18, 2011, representing the period during which he had no communication with his common-law spouse, the majority of time of which he also spent in some type of segregation.

Mr. Oben will be credited at the rate of 1.25:1 for time spent in custody from May 18 to today’s date, representing the period of time during which the other factors I have referred to were operating.

Mr. Oben will not be given credit for 60 days of pre-sentence custody, which 60 days were already credited to him following his plea in September of 2012 to a charge of failing to comply with the terms of his release.

Mr. Oben, would you please stand.

For the foregoing reasons, Mr. Oben, I sentence you to a further period of custody in the amount of 42 months, representing six years in prison, less pre-trial or pre-sentence custody.

In addition, I make the following ancillary orders, namely:

Under section 109 of the Criminal Code, I believe the prohibition is for life, Ms. Komsa, am I correct, for this offence?

MS. KOMSA: Yes, that’s correct.

THE COURT: You are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life.

Under section 487.05 of the Criminal Code, you are hereby ordered to provide a bodily sample sufficient such that an analysis of your DNA can be undertaken.

Counsel, is there anything further?

MS. KOMSA: Your Honour, I’m just inquiring as to pre-sentence custody. What should the record reflect then? The record should reflect the pre-sentence custody plus the 42 months jail sentence I believe. So it should be – if somebody has that figure I’m...

MS. CHRISTIE: Basically, Your Honour, if you needed the math that I gave you before, it was a total sentence of 2,190 days, which is the 6 years.

MS. KOMSA: Well, should it not just reflect 23 months pre-sentence custody?

THE COURT: That will not add up to – it should be 30 months...

MS. CHRISTIE: Thirty months.

THE COURT: Approximately 30 months of pre-sentence...

MS. KOMSA: Thirty months, yes. That’s what I was just trying to – yeah, 30 months of pre-sentence custody because he’s given the enhanced credit.

THE COURT: It will be 30 months of pre-sentence custody. I’m sorry if I misled anybody or confused anyone in that regard.

MS. KOMSA: Just so the record – his record would reflect that, Your Honour, is the only concern.

MS. CHRISTIE: And the remaining sentence to be reflected is 42 months...

THE COURT: That’s correct.

MS. CHRISTIE: ...remaining, Your Honour. Thank you.

THE COURT: I apologize for not being clear on that. I was asking just before you were helping in that regard, were there any other ancillary orders or anything further that either counsel wish to...

MS. KOMSA: No, you gave the section 109 and DNA. No, that’s the only ancillary orders. Thank you.

THE COURT: Very well. I would like to thank all counsel for their assistance in this matter. Again, I apologize for keeping you a little later than I had hoped I would.

MS. CHRISTIE: Thank you, Your Honour.

THE COURT: Good luck to you, Mr. Oben.

MS. KOMSA: Thank you very much, Your Honour.

C O U R T A D J O U R N E D

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Melissa A. Lennox, certify that this document is a true and accurate transcript of the recording of R v Oben in the Superior Court of Justice held at Sault Ste. Marie taken from Recording No. 0131.CR4.20130222.093619.11.ELLIESG, which has been certified in Form 1.

Melissa Lennox
Certified Court Reporter

Dated: February 25, 2013