Her Majesty the Queen v. Michael Harvey Monckton
Neutral Case Citation No. 464
Court File No. 12630/11
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and –
MICHAEL HARVEY MONCKTON
BEFORE THE HONOURABLE JUSTICE SOSNA,
AT THE COURTHOUSE, 150 BOND ST. E., OSHAWA, ONTARIO,
ON FRIDAY, FEBRUARY 22, 2013.
REASONS FOR SENTENCE
APPEARANCES:
P. Murray Counsel for the Crown.
K. Kennedy
R. Boggs Counsel for Mr. Monckton
B. Pearson
FRIDAY, FEBRUARY 22, 2013
U P O N R E S U M I N G (9:57 AM)
... REGISTRAR READS OUT LOUD THE ELECTRONIC DEVICE PROTOCOL
THE COURT: Mr. Boggs.
MR. BOGGS: Yes, Your Honour.
THE COURT: Mr. Monckton, please stand. Do you have anything you wish to say before sentence is imposed?
MICHAEL MONCKTON: No.
THE COURT: Thank you. Just take a seat, please.
Neutral Case Citation No. 464
REASONS FOR SENTENCE
SOSNA J. (Orally)
Michael Harvey Monckton was convicted, after trial, on the following counts:
That he, on or about the 5th day of January in the year 2010, at the City of Oshawa and elsewhere in the Province of Ontario, unlawfully did commit second-degree murder on the person of Keagan Davis, contrary to s. 235(1) of the Criminal Code of Canada
And
That he, between the 1st day of October in the year 2009 and the 4th day of January, 2010 at the City of Oshawa, in the Province of Ontario, did, in committing an assault upon Keagan Davis, cause bodily harm to him, contrary to s. 267(b) of the Criminal Code of Canada.
The victim in both counts was Keagan Davis, age two. Keagan was in Monckton’s care when assaulted on the date of death and weeks earlier when Keagan suffered numerous other bodily harm injuries.
On the conviction for second-degree murder, the Crown seeks a sentence of life imprisonment with no parole eligibility for 15 years. On the conviction for assault causing bodily harm, the Crown seeks a concurrent custodial sentence of five years.
The defence seeks a ten-year period of parole ineligibility on the conviction for second-degree murder. On the conviction for assault causing bodily harm, the defence seeks a concurrent sentence of one year.
Pursuant to s. 745(c) of the Criminal Code, a person convicted of second degree murder shall:
...be sentenced to imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence or such greater number of years, not being more than twenty-five years...
Section 745.4 provides, upon a conviction for second degree murder, the determination of the period for parole eligibility is governed by the following criteria:
...the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, made pursuant to section 745.2...
That recommendation for parole eligibility is made by the jury at the conclusion of the trial.
In other words, in applying s. 745 and other sentencing factors, the duty of this court is to determine when, within the period of 10 to 25 years, Monckton is eligible for review and possible release into the community by the Parole Board.
NATURE OF THE OFFENCE AND CIRCUMSTANCES SURROUNDING ITS COMMISSION:
Dealing with the factors in s. 745.4, the nature of the offence and circumstances surrounding its commission.
Michael Monckton met Leigh-Ann Worrall, Keagan’s mother, in the summer of 2009. Ms. Worrall was a single parent supporting herself and Keagan. By October 2009, Monckton and Worrall began a common law relationship. In November 2009, Moncton became unemployed and took over Keagan’s caregiving while Ms. Worrall was at work.
On the morning of January 5, 2010, Monckton phoned 911 and Ms. Worrall at work reporting that when he entered Keagan’s bedroom, Keagan was in bed, not breathing. Emergency ambulance services arrived within minutes and found Keagan with vital signs absent. Attempts to resuscitate Keagan at the scene were unsuccessful. Keagan was rushed by ambulance to the hospital. Despite valiant efforts by doctors and medical staff to revive Keagan, Keagan was pronounced dead shortly before noon that day.
Monckton surrendered himself to the police two days later. He provided two video statements to the investigating officers, introduced at trial (Exhibits F, G and J). In those statements, he categorically and vehemently denied assaulting Keagan at any time, including any assault that led to Keagan’s death.
Dr. Michael Pollanen, an expert in forensic pathology, conducted the autopsy on Keagan Davis on January 6 and 7, 2010. He prepared a report of his findings and also testified at trial. At page 30 of his report (Exhibit 12 at trial), he opined that the cause of death was “blunt abdominal trauma in a child and multiple other injuries of varying age”. At page 27, he observed:
The most significant finding at autopsy was a combination of recent and old intra-abdominal injury. This pattern of injury has been previously described in the medical literature as evidence of child abuse with repetitive blunt abdominal injury. The abdominal injuries were caused by substantial impact or impacts on the front of the abdomen (e.g. punching, heavy prodding)...
The recent blunt abdominal injury was characterized by fresh internal bleeding. This indicates that the last injury occurred within hours of death.
Dr. Pollanen’s conclusion that the intra-abdominal injury that caused Keagan’s death was consistent with evidence of earlier child abuse is made out in his findings of other multiple injuries sustained by Keagan before death. These injuries included the following:
A tear or laceration to the inside surface of the upper lip and upper frenulum. That is the fleshy web-like part that attaches to the upper lip of the gums. The mechanism of injury was likely slapping or punching the face or forcing an object into the mouth.
Head injuries exhibited on the under surface of the scalp showing areas of recent bruising. Dr. Pollanen opined that a significant recent head injury occurred in the same general timeframe as the blunt abdominal injuries and likely contributed to death.
The nape of the neck and lower back area showed areas of healing, bruising consistent with impacts or blows to the back.
A fracture to the left forearm in two separate locations, the radius and ulna. Both injuries had healed.
Spinal injury diagnosed as compression fractures found in three separate locations. The compression fractures were caused by either impact on the top of the head and transmission of force down the spine or impact on the buttocks and transmission of force up the spine.
Healing fractures to both ring fingers were located in the area where the finger bone meets the knuckle. Dr. Pollanen was unable to determine how these fractures occurred but opined both injuries required the application of significant force to be applied at the base of the fingers.
Seven rib fractures found to be in various stages of healing.
Recent bruises to the penis consistent with pinching or twisting of the skin.
As with the injuries that led to Keagan’s death, Dr. Pollanen testified that the majority of the earlier injuries were also blunt force injuries requiring the application of substantial force. He classified these injuries to be recent, healing or healed. The timeline for these injuries would be difficult to estimate but he opined that the recent injuries would have occurred within 24 hours of death, the healing injuries would have occurred within one week of death and the healed injuries would have occurred within 12 months. However, these maximum periods did not exclude shorter periods when the injuries may have been inflicted.
Dr. Michelle Shouldice was qualified to provide expert evidence concerning paediatric injuries suffered by children and to provide opinion regarding those injuries as she clinically would have assessed them during the child’s life. Her evidence was supplemented by her report. (Exhibit 27 at trial). At page 13 she concluded:
In summary, Keagan Davis was documented to have multiple injuries of different types (bruises, lip injury, fractures, abdominal injuries) involving multiple body parts (face, scalp, arms, abdomen, back, legs, hands). Many of these injuries were significant and healing injuries without evidence of medical treatment. There is no underlying medical disease or disorder that would explain the injuries documented in Keagan. It is my opinion that Keagan suffered multiple, severe, inflicted traumatic injuries. Based on the number, type and location of the injuries documented, Keagan would have suffered significant pain and discomfort.
Dr. Shouldice further testified that the nature, extent and pattern of the injuries would have no causal connection to any accidental injury that a mobile toddler may be expected to experience. Her findings, consistent with those of Dr. Pollanen, were that Keagan suffered significant and repeated physical abuse prior to death.
CHARACTER OF THE OFFENDER
A pre-sentence report was prepared in this matter. It was marked as Exhibit 8 in the sentencing hearing. At the time of these offences, Monckton was 27 years of age. He is currently 30 years old. Monckton left school at 16 and entered into a relationship in which a son was born. The relationship ended after four years with a daughter born in the interim. In 2003, Monckton was convicted of mischief arising out of an incident where he broke a window during an argument with the mother of the children. No information was provided regarding the sentence imposed.
Custody of the two children remained with the mother. Shortly before his arrest in 2010, Monckton was reunited with the children and was exercising access every other weekend.
Monckton then entered into a second relationship in 2001 that ended after seven years, although the parties were married for one year. He and his partner are now divorced. There were no children born in their union. In November 2008, Monckton was convicted of criminal harassment involving his estranged wife. He received a suspended sentence and was placed on probation for 18 months. At page four, the pre-sentence report states:
According to file records of Ministry of Community Safety and Correctional Services, the subject was not able to accept that this relationship was over.
On November the 19th, 2009, as a result of an investigation by the Children's Aid Society of Northumberland, Monckton’s name was registered in the Child Abuse Register with the Ontario Ministry of Community and Social Services. Introduced by the Crown, without objection, the notice, Exhibit 10, in part, advised Monckton of the following:
This registration is with regard to the verified child abuse suffered by [L.S.] between April and June 2009 during the time when you’re acting as a babysitter and in a regular care-giving role with [L.S.]
It is the policy of the Children's Aid Society of Northumberland that our agency will report cases of verified child abuse to the Provincial Child Abuse Registry in accordance with the Child and Family Services Act.
The court notes that Monckton was not charged with any criminal offences arising from the investigation by the Children's Aid Society.
Earlier, in September and October of 2009, Monckton was convicted of breach of recognizance, mischief and breach of probation on unrelated matters. On the breach of recognizance he received a suspended sentence and probation for nine months. On the latter convictions, he received a suspended sentence and was placed on probation for 12 months. The court has no information regarding the facts surrounding those convictions.
In summary, at the time of his arrest in this matter, Monckton was bound by three previous probation orders.
Monkton’s previous criminal record, absent the 2003 conviction for mischief, was introduced as Exhibit 9 during sentencing submissions.
In the fall of 2009, Monckton and Worrall began, as already indicated, a common law relationship. Monckton was employed at the time but was laid off from his construction job in December of that year. Since Worrall was still working, she and Monckton agreed that during her working hours, Monckton would be Keagan’s caregiver. According to the evidence of Dr. Pollanen, it is during this period after December 2009 that Keagan suffered the recent and healing injuries culminating in the blunt abdominal trauma that led to his death on January 5, 2010.
Regarding Monckton’s position on the convictions registered, the author of the pre-sentence report makes the following observations at page eight:
With respect to the offense, the subject maintains his plea of not guilty. The subject advised that he will be pursuing an appeal. He stated that he is “very sorry that Keagan is dead. I really wish he wasn’t dead but I wasn’t the one who took him from everybody”. He added that he is sorry for everyone’s loss.
SECTION 745.2 JURY RECOMMENDATION
At the conclusion of the trial, the following recommendation for parole eligibility was made by the jury. Two jurors made no recommendation. Four jurors recommended no parole eligibility for 15 years and six jurors recommended that Monckton not be eligible for parole for the maximum period of 25 years.
PAROLE ELIGIBILITY DETERMINATION
The defence submits that the imposition by this court of a minimum 10 year period of parole ineligibility addresses the factors in s. 745.4 and addresses the overall sentencing principles of deterrence and protection of the public, while at the same time addressing Monckton’s positive prospects for rehabilitation.
The defence submits that at 30 years of age, Monckton is still a young man with positive prospects for rehabilitation. Prior to his arrest, Monckton had a good work record as a millwright apprentice. Although the abuse of alcohol and drugs was not a factor in the present matter, substance abuse had been problematic for Monckton over the years. In 2009, Monckton completed a psycho-educational program regarding the effects of substance abuse and according to collateral sources, had quit drinking.
The defence submits that while in custody for the last three years, Monckton has been a model prisoner, has completed anger management courses and has upgraded his education by acquiring his “GED” while continuing to acquire the remaining credits for an Ontario Secondary School diploma. Monckton has indicated a willingness to enter any program deemed necessary or recommended while serving his sentence. The defence underlines that Monckton’s family has supported him since his arrest and will continue to support him in order that he be granted parole at the earliest opportunity possible.
The defence argues that Monckton’s eligibility for parole after serving 10 years on the life sentence accords with the observations of the Supreme Court of Canada in R. v. Shropshire 1995 SCC 47, 102 C.C.C.(3d) 193. At paragraph 27, the Court stated:
In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner: as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be "unusual", although it may well be that, in the median number of cases, a period of 10 years might still be awarded.
I find paragraph 27 in Shropshire cannot be read in isolation. Further context to paragraph 27 is provided in subsequent paragraphs 29 and 31. At paragraph 29, in part, the court continues:
In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25...
Continuing at paragraph 31:
If the objective of s. 744 is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degree murder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition that the sentence must be the statutory minimum unless there are unusual circumstances. As discussed supra, a preferable approach would be to view the 10‑year period as a minimum contingent on what the "judge deems fit in the circumstances", the content of this "fitness" being informed by the criteria listed in s. 744. As held in other Canadian jurisdictions, the power to extend the period of parole ineligibility need not be sparingly used.
The jury found that Keagan died as a result of a blow or blows callously inflicted by Monckton. The jury rejected in whole Monckton’s protestations in his video statements that at no time had he assaulted Keagan and in particular, had not assaulted him on the date of death. The jury accepted that the blow or blows were forceful enough to cause fresh internal abdominal bleeding ending Keagan’s short life. The jury accepted Dr. Pollanen’s testimony that the last abdominal injury was consistent with earlier abdominal injuries, all of which were caused by repeated punching or heavy prodding to the abdominal area. Given the findings of high moral culpability in committing the offence of second degree murder, this offence requires significant sanction.
The horrific nature of Keagan’s death is further compounded by the litany of other injuries Keagan sustained in the weeks prior to death. As noted in Dr. Shouldice’s report:
Based on the number, type and location of the injuries documented, Keagan would have suffered significant pain and discomfort.
None of those injuries, including the seven broken ribs, the two broken ring fingers, the multiple fractures to the left arm, received any medical treatment or attention. At best, the injuries were either healed or at various stages of healing.
In the circumstances of this case, I find rehabilitation, as argued by the defence, is secondary to the paramount issues of deterrence and protection of the community. In that regard, I am guided by the observations of R. v. Wenarchuk [1992] 3 W.W.R. 643 at p. 646:
The object of the provision in s. 671 is not to take away from the Parole Board, or in some way diminish, the Board's function to determine whether the accused is sufficiently rehabilitated ... to permit his release into society. Nor is the object to supply the needs of the accused as an individual. The object, rather, is to give back to the judge some of the discretion he normally has in the matter of sentencing so that the judge may do justice, not retributive or punitive justice, but justice to reflect the accused's culpability and to better express society's repudiation for the particular crime committed ... The emphasis clearly is not the protection of society through an assessment of the accused's future rehabilitative needs, or the likely progress of his rehabilitation but on the protection of society through its expression of repudiation for the particular crime by the particular accused, along with that repudiation's concomitants of individual and general deterrence.
The senseless and brutal murder of a defenceless child in one’s care is an egregious breach of trust which demands a period of parole ineligibility beyond the 10 years submitted by the defence. As noted in R. v. Fadelle 1994 NSCA 45, 127 NSR(2d) 227, a decision involving the conviction for second degree murder of a three month old infant by his father:
...the overriding considerations, in my opinion, are denunciation of the particular offence and the protection of the special segment of society, namely infants and small children. By its very nature an attack on a helpless defenseless child is reprehensible in the extreme and deserves denunciation in the strongest and loudest terms. The fact of the battery to the child was, in itself, a cruel, cowardly criminal act.
Accordingly, on the conviction for second-degree murder, Michael Monckton is sentenced to life imprisonment with no parole eligibility for 15 years. In coming to this determination, I have considered, in addition to the reasons already set out, the enormity of the loss and pain expressed by Keagan’s family in the Victim Impact Statements and the jury recommendations for parole eligibility pursuant to s. 745.2.
In addition, Michael Monckton is also bound by the following ancillary orders:
Pursuant to s. 109 of the Criminal Code, he is prohibited from possession of any weapons, as set out in that provision, for life.
Pursuant to s. 743.21, he is not to communicate with Leigh-Ann Worrall, Laura Sheriffs(Cooper), Steven Cooper, Deborah Cooper, Dan Davis, Sarah Mallette, Catherine Carrigan and any member of their immediate family during the custodial period of his sentence.
Pursuant to s. 487.04, he is to supply to the authorities a suitable sample of his DNA.
THE SENTENCE TO BE IMPOSED ON THE CONVICTION FOR ASSAULT BODILY HARM
I have considered the submissions and reviewed the sentencing casebooks filed by the Crown and the defence.
The Crown argues that the appropriate range of sentence to be imposed on a conviction for assault bodily harm when a caregiver is in charge of a child, is three to eight years in custody. Citing the gravity of the injuries inflicted to Keagan, the Crown seeks a concurrent sentence of five years.
The defence seeks a concurrent sentence of one year.
The horrific injuries inflicted to Keagan prior to death have already been reviewed and require no further elaboration. Suffice it to say those injuries, the circumstances under which they were inflicted, which caused unimaginable physical and emotional pain to a vulnerable two-year-old infant, bereft of any medical attention or treatment, demands an expression of repudiation from this court.
For these reasons, on the conviction for assault bodily harm, Michael Monckton is sentenced to a custodial term of five years concurrent to the sentence of life imprisonment.
That is the judgment of this court.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Maxine Newell, certify that this document is a true and accurate transcript of the recordings of R. v. Michael Monckton in the Superior Court of Justice held at 150 Bond St. E., Oshawa, Ontario, taken from Recording number 2812-208-400736-20130222-091242, which has been certified in Form 1.
1 March, 2013 _______________________________
Maxine Newell, C.C.R.
**Approved for release April 4, 2013