CITATION: R. v. E.T., 2015 ONSC 903
COURT FILE NO.: CR-13-40000571-0000
DATE: 20150209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Anna Stanford for the Crown
- and -
E.T.
Daniel Brodsky for Ms. E.T.
HEARD: January 30, 2015
REASONS FOR SENTENCE
CORRICK J. (orally)
Introduction
[1] On December 23, 2014, a jury found E.T. guilty of seven offences - three counts of assault with a weapon, aggravated assault, assault causing bodily harm, and two counts of unlawful confinement. The victim of these assaults was Ms. E.T.'s young son, J.R..
Circumstances of the Assault Offences
[2] J.R. was born in Grenada on […], 2003. Ms. E.T. made arrangements with J.R.’s birth mother to adopt him, although no formal adoption procedure has taken place. J.R. came to Canada on June 28, 2006, and lived with Ms. E.T., who, at that point, was separated from her husband.
[3] On May 7, 2012, J.R.’s teacher noticed injuries to J.R.’s fingers. When pressed to tell the teacher what had happened, J.R. said that his mother had bitten his fingers to punish him. The Children’s Aid Society and police became involved. Over the course of two interviews with the police, J.R. revealed that Ms. E.T. had been punishing him in other ways as well.
[4] J.R. had behavioural issues at home and at school. He regularly stole other children’s snacks and had been suspended from school for stealing food from the teacher’s staff room. At home, he disobeyed his mother by taking food he was not allowed to have, and by using the stove and toaster oven without supervision. He also stole money from his mother.
[5] Ms. E.T. began punishing J.R. by striking him with a belt when he was four years old. She changed from the belt to a wooden spoon and then to a metal spatula. J.R. described one incident in which Ms. E.T. tied his legs and arms together with duct tape, and then taped him face down to a dining room chair. She then hit his buttocks very hard with a metal spatula. A photograph of J.R.'s buttocks taken on May 7, 2012 shows that some of the skin on his left buttock had been removed, and had not yet healed.
[6] In April 2012, Ms. E.T. punished J.R. for using the toaster oven to make french fries by hitting his knee and leg with a metal spatula. J.R. suffered a laceration to his right leg as a result.
[7] On another occasion, Ms. E.T. held J.R.'s hand over a hot element on the stove until it blistered.
[8] Ms. E.T. also bit J.R.'s fingers, leg and torso. On May 2, 2012, Ms. E.T. bit J.R.'s finger when he would not talk to her about his behaviour at school that had resulted in his suspension. She also bit J.R.'s thigh as punishment for him using the stove and toaster oven.
[9] On May 7, 2012, J.R. was examined by Dr. Michelle Shouldice, a paediatrician who was the Director of the Hospital for Sick Children's Suspected Child Abuse and Neglect Unit. Dr. Shouldice observed an unusually large number of markings on J.R.'s skin that in her opinion were suspicious because they had a pattern or were in a location that was not typical of the type of injuries sustained by children in the home, school or playground. Dr. Shouldice noted markings on J.R.'s face, chest, abdomen, back, arms, hands, buttocks, and legs.
[10] Dr. Shouldice identified five linear marks on J.R.'s chest, which were concerning because of their number, the fact that they were on J.R.'s chest, an unusual place for a child to injure himself, they were linear in nature, and they were all oriented in the same direction. The features of these marks raised the concern that they were inflicted with an object. Similarly, she identified a long loop-shaped mark on J.R.'s upper right arm that was typical of an injury caused by a looped object, such as a belt.
[11] Dr. Shouldice also observed seven circular scars on J.R.'s upper abdomen, right outer and inner thigh, and at the base of his sternum, which she believed to be bite marks. J.R.'s skin was scarred in the places where the pressure of teeth had broken his skin.
[12] Finally, Dr. Shouldice observed the condition of J.R.'s hands. She noted blood under several of J.R.'s fingernails, and that many of them were thickened and ridged due to trauma. Biting with force could have caused these injuries, according to Dr. Shouldice.
Circumstances of the Forcible Confinement Offences
[13] On May 2, 2012, J.R. was suspended from school for stealing. That evening Ms. E.T. took him to a police station to see a prison cell to show him what the consequences would be if he continued to steal. When they returned home, Ms. E.T. placed him in a storage closet where she kept cleaning supplies and pantry goods. The closet contained shelving units. The free floor space was 17" by 45". J.R. remained in the storage closet from Wednesday night until about 7:00 Thursday evening. He had no food during that time and used a basin and a bucket inside the closet for a toilet.
[14] Ms. E.T. released J.R. from the closet on Thursday evening. She made him dinner, and he had a shower. While Ms. E.T. was sleeping on Thursday evening before going to work, J.R. took some diet pop, which he was not allowed to drink. When Ms. E.T. discovered this later that night, she put J.R. back in the closet, where he remained until Sunday night. During that time, Ms. E.T. passed him bags of drinking water under the closet door. J.R. had nothing to eat during that time. He continued to use a basin and bucket as a toilet. Ms. E.T. released him once each day to empty the basin and bucket.
[15] The door to the closet was held shut with a wooden pole that was braced against a wall. Police discovered the pole when a search warrant was executed on Ms. E.T.’s apartment. When J.R. pushed against the door to try to open it, the pole created a hole in the door.
Circumstances of the Offender
[16] Ms. E.T. is 51 years old. She was born in Dominica, where she completed high school. When she came to Canada in 1989, she took further high school courses, hoping to become a nurse. She was married for nine years, but is currently separated from her husband.
[17] By all accounts, Ms. E.T. is a hard-working woman, often holding down two jobs. She has always been employed in Canada. She has worked as a nanny, caring for children, and for the past fifteen years, has had a night job at Walmart stocking shelves.
[18] Mr. Brodsky has filed twenty-one letters in support of Ms. E.T.. The letters, written by family members, friends, work associates, former employers, and children Ms. E.T. cared for as a nanny, portray Ms. E.T. as a kind, generous, honest, hardworking woman, devoted to the well-being of others, including the children in her care. Many of the letters describe Ms. E.T.'s acts of kindness to others. She contributes her time to her community, volunteering at her church. It is evident from these letters that Ms. E.T. has the support of her family, friends, and members of the larger community.
[19] Equally evident from the letters is that the E.T. who committed these offences is not the E.T. that the authors know. I am unable to reconcile her treatment of J.R. with the nurturing and loving care she gave other people's children left in her charge.
[20] Ms. E.T. has no criminal record. While in pre-trial detention at the Vanier Centre for Women, she voluntarily completed two programs. The first was a one-hour program entitled "Life Skills - Being an Effective Mother", and the second was a six-session course entitled "Taking Control: Making Healthy Relationship Choices."
The Impact on the Victim
[21] J.R. is currently a ward of the Children's Aid Society, and has been living with the same foster family since May 2012. Victim Impact Statements completed by J.R., his foster mother and his worker from the Children's Aid Society were filed. J.R. reports that he feels scared and sad about what his mother did to him. His foster parents indicate that the past few years have been very difficult for J.R. as he has gone through the trial process. He has had difficulties in school and at home, focusing on tasks and integrating with peers. J.R. was unwilling to participate in some activities, such as swimming, because he was very self-conscious about the scars on his body.
[22] J.R. has been seeing a therapist since August 2013 to help him deal with the trauma he has suffered. According to his Children's Service Worker, he currently presents emotionally and socially as younger than an 11-year-old boy. He has a need to feel protected and to protect others around him.
Legal Parameters
[23] Aggravated assault is punishable by a maximum of fourteen years in prison. Assault with a weapon and forcible confinement are punishable by ten years in prison.
Positions of the Parties
[24] Ms. Stanford submits that a three-year prison term is the appropriate sentence for a case of this nature where a child suffers a prolonged period of abuse at the hands of a parent. She also seeks a DNA order and a life-time weapons prohibition order.
[25] Mr. Brodsky submits that this is a case in which a parent has meted out excessive discipline in response to a child's misbehaviour, and warrants a sentence of one year in prison. He takes no issue with the DNA order and life-time weapons prohibition order sought by the Crown.
[26] Both counsel agree that Ms. E.T. should receive ten months credit for the time she spent in pre-trial custody.
Principles of Sentencing
[27] The principles of sentencing that I am bound to consider are set out in the Criminal Code. The first is the fundamental purpose of sentencing set out in s. 718, which is to “contribute to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that give effect to one or more of the following objectives: denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society, where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community, and promoting a sense of responsibility in the offender.
[28] The second principle I must consider is proportionality as set out in s. 718.1. Any sentence imposed must reflect the gravity of the offence and the offender’s degree of responsibility.
[29] Thirdly, I am required by section 718.2 to impose a sentence taking into account any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[30] Finally, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I have reviewed the cases dealing with child abuse that counsel have provided to me. I do not propose to set out the details of each of them because no two cases of child abuse are the same, and one case can be easily distinguished from another. Sentencing is a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The sentencing principles set out in the Criminal Code must be applied to the unique circumstances of the case. However, certain themes do emerge from the cases.
[31] Firstly, the abuse of children by the very people who have a duty to protect them is a gross breach of trust. This basic concept has been codified in s. 718.2 of the Criminal Code as one of the aggravating features of a case that a court must consider in imposing sentence.
[32] Secondly, denunciation and general deterrence are the paramount considerations in determining a fit sentence in child abuse cases, particularly those that involve prolonged physical abuse.
[33] Mr. Brodsky submits that the Court of Appeal has set out two different approaches to cases of this sort. The first is articulated in R. v. C.M.R., 2004 CanLII 35055 (ON CA), [2004] O.J. No. 4490, in which Justice Cronk said at paragraph 15, "this Court has long emphasized that the imposition of substantial sentences is essential to meet the purposes of sentencing in order to protect defenceless children from mistreatment by their parents." The second is articulated in R. v. F.H.G., [2005] O.J. 1954 in which the court set aside a custodial sentence to support the rehabilitation of the accused and the reunification of the family unit. I do not agree that the Court of Appeal has established two distinct approaches. The case of F.H.G. is unique in that the court was dealing with whether to return a mother to prison after significant progress had been made toward the complete recovery of the parent-child relationship while the mother was on bail pending appeal. The court indicated that the trial judge properly considered denunciation and deterrence as significant factors in imposing a custodial sentence for a single violent act perpetrated by the mother as excessive discipline.
[34] I note as well that the Court of Appeal in R. v. Sundh, [1989] O.J. No. 509, held that a maximum reformatory or minimum penitentiary sentence would have been the fit disposition in a case involving a mother who had pleaded guilty to aggravated assault, having inflicted serious injuries on her five-year-old son over a period of weeks. The court did not interfere with the 12 month sentence imposed by the trial judge because of the accused's progress in a rehabilitation program, but characterized it as at the extremely low range of sentence for such a serious offence.
[35] The decision of Justice Nordheimer in R. v. A.N.C., [2006] O.J. No. 3144 bears the most resemblance to the circumstances of this case. The victim in the A.N.C. case was the accused's three-year-old daughter. The child was found to have injuries all over her body that were likely inflicted from multiple blows with an object or objects, as well as broken bones in both of her forearms. The injuries were between weeks and years old. Justice Nordheimer found that the child had been abused by her mother over a period of months, and found her guilty of three counts of aggravated assault.
[36] Like J.R., the victim in the A.N.C. case suffered permanent physical scars, as well as significant mental and emotional scarring. Like J.R., she was receiving psychological counselling.
[37] Unlike Ms. E.T., Ms. A.N.C. had a criminal record for possession of crack cocaine for the purpose of trafficking. She was serving a two-year conditional sentence when she committed the offences against her daughter, which is an aggravating factor that is not present in this case.
[38] Justice Nordheimer held that a fit sentence was one of three years in the penitentiary. After giving Ms. A.N.C. credit for pre-trial custody, he imposed concurrent sentences of two years followed by probation.
Aggravating and Mitigating Circumstances
[39] As I have already indicated, s. 718.2 of the Criminal Code mandates a consideration of any relevant mitigating or aggravating circumstances related to the offence or the offender. I turn to those now.
[40] The aggravating factors of this case are significant. Ms. E.T. abused her young son over a period of years. This is not simply a case of excessive discipline. The discipline, if that is what it can be called, that Ms. E.T. meted out in response to J.R.'s misbehaviour was extreme, cruel, degrading and dangerous. Taping a child to a chair and striking him with a metal spatula, biting his thigh and chest, holding his hand over a red hot stove element and confining him in a small closet with no food for four days and a bucket for a toilet can only be described as brutal and inhuman. The photographs of J.R.’s buttocks, leg and fingers filed during the trial bear witness to Ms. E.T.’s abuse. Ms. E.T. not only physically injured J.R., but to compound matters, she did not seek medical attention for him. This is a case of a grievous breach of trust.
[41] This is not a case of a single act of overzealous discipline, or a case of a momentary lack of judgement, but rather a pattern of abuse that continued over years. Ms. E.T. was not an immature mother, but rather an experienced child caregiver who appears from the letters filed on her behalf to know how to nurture and protect children in her care. Why she was unable to apply these same skills to her own child is baffling.
[42] J.R. will bear the scars, both physical and emotional, of his mother's abuse forever. The scarring on J.R.'s back, legs and chest is significant and there is evidence that he is self-conscious about it. He has endured a great deal of turmoil and instability in his young life. He lived with his birth mother for a few weeks in Grenada, then with his aunt in Antigua for three years until coming to Canada to live with Ms. E.T. in May 2006. Six years later, his life was upended once again when he disclosed to his teacher that his mother had caused the injuries to his fingers by biting them. J.R.'s victim impact statement explains that he feels scared and sad about what his mother did to him. He has been receiving ongoing counselling since August 2013.
[43] In mitigation, Ms. E.T. is a first offender. She is a very hardworking woman who has been steadily employed since coming to Canada. She has the support of her family, friends, co-workers and community, which I am hopeful, will assist her in her rehabilitation.
Determination of a Fit Sentence
[44] In the circumstances of this case, denunciation, and deterrence are of paramount importance. These crimes were committed against a defenceless and vulnerable child. Rehabilitation and promoting a sense of responsibility in Ms. E.T. for her actions cannot, however, be overlooked.
[45] Accordingly, before crediting her for the time she has spent in pre-sentence custody, I am of the view that a sentence of 30 months in prison is required to adequately address the relevant sentencing principles, and is in keeping with sentences imposed on similar offenders in similar circumstances.
[46] Ms. E.T., on counts 1, 2, 3, 5, 6 and 8,[^1] I sentence you to 20 months in prison to be served concurrently. In addition, as aggravated assault is a primary designated offence under the DNA provisions of the Criminal Code, there will be an order requiring you to provide a DNA sample. There will also be an order prohibiting you from possessing any weapon for life.
[47] On consent, count 7[^2] is conditionally stayed pursuant to the principle in R. v. Kienapple.
[48] I am also going to request that the victim impact statements, and the letters and certificates filed on behalf of Ms. E.T. be sent on to the institution where she will serve her sentence.
Corrick J.
Released: February 9, 2015
CITATION: R. v. E.T., 2015 ONSC 903
COURT FILE NO.: CR-13-40000571-0000
DATE: 20150209
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
E.T.
REASONS FOR sentence
Corrick J.
Released: February 9, 2015
[^1]: In my oral reasons, I indicated that I sentenced Ms. E.T. on counts 1 through 6 and 8. However, the jury was asked not to return a verdict on count 4 and therefore the sentence does not apply to count 4.
[^2]: The count numbers in these reasons correspond to the counts in a second indictment that was drafted and put before the jury, and to which the jury’s verdicts correspond. The second indictment was not signed. The counts in the second indictment correspond with the counts in the original indictment, albeit with different numbers.