ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-33
DATE: 2013/12/05
IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCASTED OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486(3) OF THE CRIMINAL CODE OF CANADA DATED NOVEMBER 15, 2013 OF THE HONOURABLE MR. JUSTICE ROBERT PELLETIER.
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.P.
Accused
Daniel Brisebois, counsel for the Crown
Kimberley D. Hyslop, counsel for the Accused
HEARD: June 20th, 2013 and October 10th, 2013
REASONS FOR JUDGMENT
LAFRANCE-CARDINal, j.
[1] On June 20th, 2013 A.P. plead guilty to section 215(2)(a) of the Criminal Code of Canada to the effect that he failed without lawful excuse to provide the necessaries of life to A.P., thereby likely causing the health of his child to be endangered permanently.
[2] A.P. is the biological father of two children; I.P. and A.P.. Both parents, A.P. and M.D., have plead guilty to failing to provide the necessaries of life to their oldest child, A.P.. Their eldest child was severally neglected; he was apprehended on November 18th, 2011 by the Children’s Aid Society. It is the evidence of the mother that the child had been barricaded in his room since August of 2011. He was not left out of that room nor was he bathed since August of 2011. The child would be fed once per day and had no human interaction.
[3] The sentence provisions of the Criminal Code states that anyone who is found guilty of such an offence is liable to imprisonment for a term not exceeding five years.
[4] It is the position of Ms. Hyslop, counsel for A.P. that A.P. be given enhanced credit for the eight and a half months of pre-trial custody that he served at the beginning of these court proceedings. She is asking that he be given an enhanced credit so that the eight and a half months be equal to twelve months. It is her position that a twelve month sentence is fair in the circumstances having regard to the offence and to this offender. She is also claiming that probation of twelve to eighteen months would be justified in the circumstances. The Crown is asking for a period of custody of six to seven months over and above time spent together with the ancillary orders of a weapons prohibition, a DNA Order and a probation term.
[5] The aggravating factors are that we are dealing with a defenceless child who was severally neglected by his parents. When the child was apprehended in November of 2011 he was malnourished, dehydrated, emaciated, he had sunken eyes, no muscle tone and only weighed 24 pounds well below the average size for a four year old. He had an impetigo rash, fecal matter in his nose and the inside of his ears, two welts and scars on his head, multiple cavities, and discolouration of the teeth. A bone scan revealed fractures of the right clavicle as well as possible fracture of the eighth rib. The child could not speak nor did he have a vocabulary save and except for two words: Scooby Doo and Cup. Once apprehended it was evident that the child did not know what to do with toys, he did not know how to make eye contact. It was evident after the apprehension that both brothers did not know each other. His gait and posture were abnormal. He had not been taught how to properly sit. The evidence is that he would lie with his legs to one side. At the time of the apprehension he was presenting as an eighteen month old rather than a four year old and consequently had significant delays.
[6] M.D., the mother of the child and the spouse of A.P. testified that she had not left the child out of the room since August of 2011, that he was barricaded in a room, that he had not been bathed since that time, and that the only contact he would have with the outside world was when she fed him once a day with Pablum. An aggravating factor was that A.P. got the mother of his children, severally addicted to drugs. The addiction to drugs impaired both of their abilities to care for their children. A.P. may not have been the day-to-day caregiver to the children as he was away much of the day but he knew or ought to have known that his eldest son was barricaded in a room under despicable conditions.
[7] The mitigating factors are that this relatively young accused has no criminal record, that he has plead guilty, and from all reports suffers great remorse.
The offender
[8] The accused at the age of 26 was diagnosed as being in the borderline range of intelligence. At that time, he was reading at a grade eight level, spelling at a grade three level and doing arithmetic at a grade two level. His scores met the criteria of mental retardation. He is a recipient of ODSP for disability relating to low intellectual functioning. This young man comes from a very poor family where there were never any extras. At the age of 13, he started drinking regularly. At the age of 9, he started using illegal drugs, pot, acid, magic mushrooms. At the age of 13, he graduated from a few drinks a day to trafficking in drugs. The report indicates that one of his biggest regrets is that he got the mother of his children, M.D., addicted to drugs. While they were together they would smoke 14 to 21 grams per day. He made his own speed pills, he could consume up to 10 to 15 pills a day. He dealt drugs regularly for a period of eight years but never got caught. During the time of the offence he reported using up to 15 “hits” of cocaine per day. At the time of the arrest, he was incarcerated and released eight and a half months later pursuant to a Bail Review. At the bail hearing, the accused was detained on the terciary grounds. At the bail review, some 8 months later, Leroy J. found that the learned justice of the peace erred in detaining A.P.. He states:
“With the greatest respect to the learned justice of the peace, his assessment of the statutory factors was a gloss implicit in which was that A.P. was all but convicted of the offences charged. He disclosed his bias when he declared that “You knew what was going on, you were well aware of what was happening in that house, you lived there.” Those findings of fact are a matter of a trier, have not been proven and lie at the centre of the trial. A.P. is merely accused and is entitled to the presumption of innocence.”
He was released from custody and went straight to Anchorage Rehabilitation Program in Ottawa. He was there for a period of four months doing the cognitive behavior program, the aggressive prevention group program. He has also completed 16 sessions with the Salvation Army Skills group. He has been clean and sober since the time of his arrest. He attends weekly after care group programs and meets with the Chaplain once a week. He is presently residing at the Salvation Army transitional house which is a place where young recovering addicts can stay up to a period of six months, however, he has been there since December 1st, 2012 as he is an “exceptional case”. He is a model resident, his participation is exemplary. He attends two AA or NA meetings per week. He volunteers at community functions at every opportunity. He is trying to give back to the community. This first time offender is very remorseful but he has to live with the fact that he will never be part of his children’s lives who have since been adopted. His relationship with his spouse, M.D., is terminated. They have had no contact since the time of the arrest. A.P. was given an opportunity of coming to a halfway house in Cornwall but refused to do so wanting to start a fresh start with the support system he presently has in Ottawa.
[9] Denunciation and deterrence are the paramount sentencing consideration in child abuse sentencing: R. v. S.E.C. [2003] B.C.J. No. 1768 (C.A.), at para. 16.
[10] Section 718.2 of the Criminal Code indicates that a sentence should be increased where the evidence discloses abuse of a child (section 718.2(a)(ii.l)) or that the accused was in a position of trust, (section 718.2(a)(iii)). As in the R. v. D.E. [2005] O.J. No. 2589 (S.C.J.) case: “This is not the case of a parent failing briefly to provide adequate care, nor is this a case of an isolated incident of abuse or neglect. The events which led to these charges occurred over months.” Para. 17.
[11] Section 718.2(a) of the Criminal Code dictates that “a sentence should be similar to sentences imposed on similar offenders for similar offenses committed in similar circumstances.” The co-accused in this matter, the mother of the children also plead guilty, she too had no criminal record and on November 15th, 2013, Pelletier, J. sentenced her to 12 months true jail and 24 months of probation. M.D. is a similar offender for the same offense committed in the same identical circumstances, however she also plead guilty to criminal negligence causing bodily harm under Section 221 of the Criminal Code.
[12] If there should be parity of sentence and the co-accused was sentenced to 12 months, although for two separate charges, should A.P. be given another 3.5 months of custody to receive the same sentence as the mother of the children or should he be given enhanced credit for pre-trial custody.
[13] In the decision of R. v. Summer, 2013 ONCA 147, 114 O.R. (3d) 641, the Ontario Court of Appeal has dealt with pre-sentence custody. It states at paragraph 37:
“The conceptual rationale for crediting pre-sentence custody has traditionally been based on three considerations: (1) as in issue in this case, parole eligibility and statutory release and remission provisions do not take account of time spent in pre-sentence custody; (2) generally, detention centres do not provide educational, retraining or rehabilitation programming for those in custody waiting trial; and (3) due to overcrowding, inmate turnover, labour disputes and other factors, the custodial conditions for remand prisoners can be unusually onerous: Wust, at paras, 28 and 38; [page 653] Rezaie, at para. 25; R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990 (C.A.), at paras, 31-32; Francis, at para. 14.”
[14] Section 719(3.1) gives the sentencing judge discretion to grant enhanced credit “if the circumstances justify it”. The Court of Appeal at para. 68 of the Summers decision (supra) confirms that discretion:
“The legislator’s failure to employ modifying language in connection with the word “circumstances” in s. 719(3.1), particularly when restrictive language could readily have been inserted, is significant. It gives rise to the inference that a sentencing judge enjoys a wide discretion under the provision to consider all those circumstances that may, in a particular case, warrant enhanced credit, subject always to Parliament’s clear direction that such credit should not exceed that calculated at the maximum rate of 1.5:1.”
[15] In the case at bar, I find that the accused is entitled to enhanced credit on three grounds:
The bail review judge finds that the justice of the peace erred in detaining A.P. on the terciary ground, that he showed bias and made findings of fact that were matters to be left to the trier of fact;
If A.P. had been sentenced to a 12 month jail sentence like the co-accused, he would have been released after 8 months. He served 8 ½ months;
Most importantly is what A.P. has done after he was released from jail. He attended the Anchorage Rehabilitation Program for 4 months. He has been residing at the Salvation Army transitional house, a home for young recovering addicts since December 1st, 2012, for more than 1 year now. He is sober, free of drugs and alcohol and a model resident. He deserves enhanced credit for the exceptional way in which he has turned his life around. Over and above the 8 ½ months incarceration, he has been institutionalized for over 16 months in order to become a better person.
[16] Having regard to the personal circumstances of this offender, he shall be given enhanced credit of 3.5 months for a sentence served of 12 months. The record will indicate 12 months time served. He shall be put on probation for a term of two years. The term of his probation shall include the statutory conditions as well as:
Attend for any counselling as directed by your probation officer and sign any releases necessary to share that information with the probation officer;
Attend 1 N.A. or A.A. meeting per week and provide proof if requested by your probation officer;
Abstain from possession, purchase or consumption of alcohol and non-prescribed drugs;
No contact direct or indirect with M.D.;
Abstain from care and custody of any child under the age of 12 years old without the prior approval of the CAS of S.D.& G.
[17] There will be a DNA order under Section 487.051 of the Criminal Code.
[18] There will not be a weapon prohibition under Section 109 of the Criminal Code as it would take a very liberal interpretation of “where violence is used or threatened”.
Madam Justice Lafrance-Cardinal
Released: December 5th, 2013