Court File and Parties
COURT FILE NO.: CR-17-10000034-0000 DATE: 2017-06-22 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Her Majesty the Queen – and – Joel France, Defendant
Counsel: Mihael Cole and Heather Keating, for the Crown Nathan Gorham and Joanne Park, for the Defendant
HEARD: April 26, 2017
MOLLOY J.:
REASONS FOR DECISION #3 (Sentencing)
A. INTRODUCTION
[1] Joel France pleaded guilty to unlawful act manslaughter in the death of two-year-old Nicholas Cruz. Based on agreed upon facts, I found Mr. France guilty of that offence.
[2] Mr. France was the live-in boyfriend of Nicholas’ mother, Marleny Cruz. Nicholas died on July 14, 2013 as a result of complications from a blunt force trauma to his abdomen. As a result of the blow, his intestines ruptured and their contents leaked into his abdominal cavity. Over an approximate two-day period, Nicholas suffered from pain, fever and lethargy and was vomiting green bile. Ultimately, he died from sepsis. This was a treatable condition. Timely medical intervention would have saved Nicholas’ life. However, Ms. Cruz and Mr. France did not take Nicholas to the hospital until two hours after they found him dead.
[3] In addition to the injury that had caused his death, Nicholas’ body had numerous other cuts and bruises, including to his head, face, neck, back, and limbs. Hospital staff alerted the police. Both Ms. Cruz and Mr. France were charged with second degree murder. Both were held in custody pending trial. Both were committed to trial after their preliminary hearings and were scheduled to be tried together in this Court. Prior to the trial date, Ms. Cruz pleaded guilty to the included offence of unlawful act manslaughter for failing to provide the necessities of life to Nicholas. On January 5, 2017, on a joint submission, she was sentenced to six years in prison. When credited for time in pre-trial custody, the time remaining to be served was approximately nine months. Upon her release from prison, Ms. Cruz will be deported to the Dominican Republic.
[4] Mr. France’s trial on the charge of second degree murder commenced before me on January 9, 2017, with a number of pre-trial motions. Prior to jury selection, Mr. France, with the consent of the Crown, pleaded guilty to the included offence of manslaughter, based on the unlawful act of failing to provide the necessities of life to Nicholas. There was no agreement on the appropriate sentence.
[5] The Crown alleged three aggravating factors that required a hearing before me. At the conclusion of that hearing, I ruled that: (1) I was satisfied beyond a reasonable doubt that Mr. France assaulted Marleny Cruz on numerous occasions; (2) I was satisfied beyond a reasonable doubt that Mr. France assaulted Nicholas in the guise of misguided discipline causing injuries to his head, face, ears, neck, back, arms and legs; and (3) I could not be satisfied beyond a reasonable doubt that Mr. France delivered the fatal blow to the abdomen that resulted in Nicholas’ death. My reasons for those rulings are the subject of a separate written decision. [1] R. v. France # 2 (Rulings on Gardiner Hearing), 2017 ONSC 2846.
[6] The Crown submits that the appropriate sentence for Mr. France is ten years’ imprisonment, from which should be deducted a credit for time served at a ratio of 1.5 to 1. Mr. France has been in custody since July 15, 2013 and is now being sentenced on June 22, 2017, which would be a credit of just under six years. The defence submits that the appropriate range for Mr. France’s offence is four to six years, which would essentially result in Mr. France being sentenced to time served.
[7] For the reasons that follow, I find the appropriate sentence to be nine years.
B. PRINCIPLES OF SENTENCING
[8] Imposing a just sentence on an offender is a delicate balancing exercise. The fundamental purpose of sentencing and the general principles to be applied are set out in s. 718 of the Criminal Code, R.S.C., 1985, c. C-46. Those principles provide general guidance and underscore some of the factors that must be considered and which principles should take priority for certain offences. One of the most fundamental of the guiding principles of sentencing is the principle of proportionality, [2] which requires me to impose a sentence that is proportionate to the gravity of the offence and the moral blameworthiness of the offender.
[9] Another overarching principle is the importance of parity in sentencing. The imposition of sentence cannot be an arbitrary process. The Criminal Code stipulates that a sentence “should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” [3]
[10] In determining an appropriate sentence for a particular crime, I must bear in mind the objectives of sentencing, as stipulated in s. 718 of the Criminal Code. The sentence must be sufficient to serve the objective of denunciation, bearing in mind the harm done to the victim and the standards of our community. I must also take into account general deterrence of others who might be tempted to commit such a crime, as well as specific deterrence of this offender. Rehabilitation must always be considered in sentencing, as well as the importance of promoting a sense of responsibility in the offender, which I see as a related concept. Sometimes (although not a significant factor in this case) it is also necessary to impose a sentence that will protect the community by separating the offender from society. [4] Where, as here, the offence involved the abuse of a person under the age of 18, the Criminal Code mandates that the primary objective in sentencing must be denunciation and deterrence, [5] which is also a concept well understood in the case law.
[11] The existence of any mitigating or aggravating factors must also be addressed and the appropriate sentence adjusted up or down accordingly. [6] The Criminal Code deems some things to be aggravating. Importantly for this case, the Criminal Code deems as aggravating the fact that the offence involved the abuse of a person under the age of 18 and that the offender abused a position of trust or authority in relation to the victim. [7]
[12] In applying these general principles to this case, I will first consider the circumstances of the offence, an important aspect of proportionality. I will then review the circumstances of the offender, and mitigating and aggravating factors, as components of Mr. France’s degree of responsibility and moral blameworthiness for this crime; another important aspect of proportionality. This analysis will be followed by a consideration of the principles of denunciation, deterrence and rehabilitation. Finally, I will review some of the case law on sentences imposed for crimes of this nature with a view to achieving parity in sentencing. The sentencing process is an exercise of discretion. These various factors must be considered and weighed in the balance, but in the final analysis, the imposition of sentence is a highly individualized process, tailored to the particular situation of this offender and the offence he has committed.
C. CIRCUMSTANCES OF THE OFFENCE
[13] As a result of Mr. France’s crime, a two-year-old child died. In his short life, Nicholas had already survived considerable hardship, as had his mother. Things had finally started to turn around for both of them when Mr. France entered their lives and changed everything.
[14] At the time of Nicholas’ birth, his father (Jonathan Donaldson) was already in jail, accused of attempting to murder his mother, Marleny Cruz, an offence for which he was later convicted. Although she did not know it at the time, Ms. Cruz was already pregnant with Nicholas (her third child) when Mr. Donaldson attacked her and stabbed her in the back, penetrating one of her lungs. Ms. Cruz had been a victim of abuse for almost her whole life, including physical and emotional abuse by her stepmother and physical, emotional, and sexual abuse at the hands of her father. Throughout her relationship with Mr. Donaldson, he beat her and demeaned her. She was never able to leave him completely until the final attack that nearly killed her. Her inability to get her life in order resulted in her first two children being taken by the Catholic Children’s Aid Society (“CCAS”) and eventually adopted. Understandably, when Nicholas was born, the CCAS considered that he was in need of protection and he was apprehended at birth.
[15] Nicholas was in foster care for the first 15 months of his life, while his shattered mother attempted to piece her life back together. Ms. Cruz developed a close relationship with Nicholas’ foster mother, Judy Oleszewski, who had also fostered her two other children until their adoption. Under the supervision of Ms. Oleszewski and the CCAS, Ms. Cruz set out to earn the trust of the CCAS and to become a real mother to her son. She went for counselling, took parenting and life skills courses and returned to school to finish her high school diploma. Starting with short supervised visits, she began to spend more and more time with Nicholas and developed a bond with him. By August 2012, CCAS determined that she was ready to take on more responsibility. She was able to obtain subsidized housing, a townhouse for her and Nicholas, and a daycare program for Nicholas while she attended classes. Two nights a week, when Ms. Cruz had night classes, Ms. Oleszewski babysat Nicholas. Throughout that period of time, numerous child care workers, a public health nurse and other social welfare staff closely supervised how Nicholas was doing. He was thriving. Every one of these professionals commented on the warm and loving relationship between Ms. Cruz and Nicholas. Ms. Cruz was doing well at school and was planning to enter college to study social work. Nicholas was happy, healthy, and well-adjusted.
[16] Joel France met Marleny Cruz on May 14, 2013. Early on in their relationship, he started to abuse Ms. Cruz. After he moved into her townhouse at the end of June 2013, things got progressively worse. He took on the role of an authority figure over Nicholas, insisting that the child call him “Daddy” and obey him. He meted out physical discipline on Nicholas for supposed infractions such as not saying thank you when given food. For the last two weeks of Nicholas’ life he was kept home from daycare and the babysitter because of the extent of the obvious physical injuries on his body. Then on Friday, June 13 there was a significant downturn. At some point prior to that, Nicholas sustained a blunt force trauma to his abdomen causing his intestines to rupture. He developed an infection. He was moaning and feverish, unable to eat. He was vomiting green bile. At Mr. France’s suggestion, they gave Nicholas herbal tea made of ginger and garlic. They did not take him to a doctor or to the hospital.
[17] Mr. France was out of the home from late Saturday afternoon until late at night. Not long after he returned home, he beat up Ms. Cruz because of an innocuous phone call she received from an old school friend, and accused her of being a whore. However, they then stayed up smoking marijuana and otherwise “celebrating” the two-month anniversary of their meeting. Nicholas was awake and crying for much of this time, with the result that Mr. France and Ms. Cruz did not get to sleep until about 10:00 a.m. Sunday morning. Mr. France woke up at around 2:00 p.m. in the afternoon and went to the bathroom, which was next door to Nicholas’ room. He found Nicholas in his crib, dead. He then called Ms. Cruz, who was extremely upset and crying.
[18] For reasons that were never satisfactorily explained, neither of them called 911. Mr. France told the police that he thought it would take too long to get to the hospital by ambulance. That is clearly not an explanation. Although they found Nicholas’ body at 2:00, they did not go to the hospital until 4:00. Mr. France reportedly attempted CPR, although it is not clear whether this was an earnest attempt to revive the child or mere window-dressing. Either way, I do not believe for a moment that this went on for two hours, or even one hour. They cleaned Nicholas’ body and changed his clothes, as he had vomited on himself before expiring. Then they got themselves dressed. Then they went out on the street to call a cab, but seeing a neighbor in his car, asked him to take them to the hospital. Inexplicably, by then, two hours had elapsed since they had found Nicholas’ dead body.
[19] Nicholas spent the last two weeks of his life in misery. For the last two days he was in pain and desperately ill. Appropriate medical intervention would have saved his life. Ms. Cruz testified that she was afraid to seek help because Nicholas’ body was covered in bruises and cuts. She feared that anyone seeing those injuries would contact the child welfare authorities and she would lose custody of Nicholas.
[20] It is unclear what Mr. France’s motivation was. It is highly unlikely, as suggested by the defence, that he deferred to Ms. Cruz. He dominated every aspect of her life, including how her child should be disciplined. In their relationship, she did not tell him what to do; it was clearly the other way around. The most likely explanation for not seeking appropriate medical treatment was that Mr. France did not want to get into trouble for the obvious signs of physical abuse on Nicholas’ body, as well as on Ms. Cruz’s body.
[21] Whatever the reason, it was within Mr. France’s power to obtain life-saving help for Nicholas, and he failed to do so. I do not know whether Mr. France actually administered the blow to the stomach that led directly to Nicholas’ death. I also do not know whether he was fully aware of the serious nature of Nicholas’ condition. Ms. Cruz had done Google searches and obtained information that Nicholas’ symptoms could be the sign of a life-threatening injury, but there is no evidence as to whether that information was passed on to Mr. France. However, Mr. France admitted at the time of his guilty plea that as of 10:00 a.m. on July 15, 2013 he had a legal duty to seek the necessaries of life for Nicholas and that his failure to seek medical attention was a marked departure from what a reasonable person would have done in the situation. Also, Mr. France was largely responsible for the other injuries to Nicholas and those injuries, at least in part, were the reason Nicholas was not taken to a doctor when he was so manifestly critically ill. Mr. France is responsible for his death.
D. CIRCUMSTANCES OF THE OFFENDER
[22] Joel France is now 40 years old. He was born in Saint Vincent and the Grenadines in 1977. His father left the home when he was three years old. When he was five years old, his mother emigrated to Canada, leaving him in Saint Vincent in the care of his aunt and other relatives. When he was 10 years old, Mr. France came to Canada with his aunt and rejoined his mother.
[23] Mr. France’s mother, Bethel France, swore an affidavit which was filed as an exhibit at trial. Its contents were not challenged by the Crown. Ms. France stated in her affidavit that during the time that Mr. France was living in Saint Vincent with her sister, he was whipped and beaten, often with belts or sticks, as a form of discipline.
[24] Ms. France found her son to be rebellious and unwilling to follow the rules of her household. Unable to control or tolerate his behaviour, she turned him over to the Children’s Aid Society (“CAS”) when he was 13 years old. After that, he went back and forth between foster care and living with his mother for a number of years. Notwithstanding these circumstances, Ms. France believes she has a close relationship with her son, a belief that is supported by other family members and friends, as well as by Mr. France. Mr. France has lived on his own since he was 22.
[25] Mr. France finished high school, but went no further. He told the author of the pre-sentence report, Probation and Parole Officer Rudi Coccolo, that he regrets not pursuing a career in business or playing basketball. He told Mr. Coccolo that he did not follow through on his plan to go to college to study business because his mother did not want him to incur a student loan. He also told Mr. Coccolo that he has held “consistent employment” the majority of his adult life, either working for companies or through self-employment, citing in particular employment as a landscaper, security guard, disc jockey and customer service agent. Mr. Coccolo reports being unable to verify the history of employment. That is not surprising. Mr. France frequently boasted about being a security guard. He told many people at the hospital when he was there with Nicholas, and repeatedly played it up when talking to various police officers, pointing out that they were essentially on the same team. In fact, his employment as a security guard had been seven years before that and lasted for about two weeks. As for “consistent employment”, Mr. France has been on welfare from March 5, 1999 to March 31, 2001; June 27, 2001 to November 23, 2008; and June 1, 2010 to July 31, 2013 – being 12 of the last 14 years before his arrest. During at least some of the time he was receiving public assistance, he was “self-employed” selling bootleg movies and CDs, but I would not count that as gainful employment. I also find it implausible that his mother is to blame for his failure to pursue a college degree and a career in business.
[26] According to Mr. France’s mother, she learned later that Mr. France was the victim of abuse while in foster care in Canada. Mr. France may well have told her that, but I am not aware of any other confirmation and would be reluctant to simply take Mr. France’s word for that. Mr. France was, however, the victim of other assaults in his adult life including being stabbed, shot at multiple times, and assaulted with a gun used as a blunt weapon during a robbery.
[27] There would not appear to be any alcohol or substance abuse issues. He uses marijuana regularly, but only, he reports, due to his “cultural upbringing and to alleviate past trauma.”
[28] Mr. France has been a Canadian citizen since 1990. He does not have a criminal record.
E. MITIGATING and AGGRAVATING FACTORS
Aggravating Factors
[29] There are two factors deemed to be aggravating by statute. In committing the offence, Mr. France: (1) abused a person under the age of eighteen years; and (2) abused a position of trust or authority in relation to the victim. [8] Criminal Code s. 718.2 (ii.1) and (iii).
[30] In addition, s. 718.2 (ii) of the Criminal Code deems it to be an aggravating factor that the offender “in committing the offence, abused the offender’s spouse or common law partner.” This provision is a statutory recognition of the serious nature of domestic assault and the importance of imposing heavier sentences to deter such behaviour. In this case, Mr. France is convicted of committing manslaughter by an unlawful act, failing to provide the necessaries of life. Although Ms. Cruz was not the direct victim of that crime, Mr. France’s persistent and repeated abuse of Ms. Cruz is part of the overall context in which his crime was committed. While the deeming provision in s. 718.2 (ii) may not apply directly, it is nevertheless aggravating that Mr. France was physically and emotionally abusive to Ms. Cruz.
[31] Moreover, Ms. Cruz was particularly vulnerable to such abuse because of her history, especially with respect to the horrific physical abuse she endured at the hands of her previous partner, Mr. Donaldson, a fact well-known to Mr. France. And yet, knowing her vulnerability, he proceeded to beat and abuse her. He also completely dominated her life, controlling everything she did and isolating her from her friends.
[32] For most of her testimony at the hearing before me, Ms. Cruz displayed little emotion, speaking in a subdued, low tone of voice, almost a monotone. A rare exception was when she said in cross-examination that Mr. France was “ten times worse” than Mr. Donaldson. When defence counsel challenged this statement, Ms. Cruz retorted, angrily and with considerable passion, that at least Mr. Donaldson only did those things to her and he never hit her children, whereas Mr. France assaulted her son. It was a stunning moment.
[33] Which brings me to the next aggravating factor – Mr. France’s repeated assaults on Nicholas. It is extremely aggravating that Nicholas was only two years old at this time, completely vulnerable and unable to either defend himself or get help. As Crown counsel eloquently said in his closing argument, “ He was a baby. He slept in a crib. He ate in a high chair. He still wore diapers. He was just reaching the age when he was starting to talk coherently.”
[34] It is difficult to imagine any person in our current society actually believing that it is acceptable, or even logical, to “discipline” a two-year-old by smacking him in the head, or slapping him in the face, or flicking his ears until they bleed. Within six weeks of meeting this child, however, Mr. France assumed a parental role and, in particular, took on the role of disciplinarian. This was a child described by several social workers, two daycare workers, and a babysitter as being a lovely, happy toddler. Yet Mr. France felt it necessary to hit him all over his body in the guise of discipline, leaving puncture marks, scrapes, cuts and bruises virtually everywhere. Quite apart from the fatal injury that caused Nicholas’ death, here are the injuries found on his body at autopsy:
- a small cut and two abrasions on his nose;
- bruising, swelling and an abrasion on the right side of his face;
- eight small puncture-type wounds to the left side of his face;
- a number of scrapes and bruises on his left ear;
- numerous red abrasions at the back of his neck and back, some of which looked to be indentations from fingernails;
- abrasions to both the left and right side of his neck;
- multiple abrasions and a bruise on his chest;
- two parallel scratch marks on his abdomen;
- red abrasions and punctate abrasions on his biceps and left tricep;
- an abrasion on his right hand;
- five bruises on his left thigh;
- cuts on his lips; and,
- multiple injuries and bruising to his head, with sub-scalp bleeding and a subdural hemorrhage.
[35] The vast majority, if not all, of these injuries were inflicted upon this two-year-old in the space of a two to three week period, after Mr. France moved into the home and took it over.
[36] The autopsy photographs of his tiny, battered body are heart-breaking.
[37] As a result of Mr. France’s assaults, Nicholas’ body was covered in small cuts and bruises, including on his head, face and ears. Ms. Cruz kept him at home rather than sending him to daycare or his regular babysitter for fear that if anyone saw these injuries, the CCAS would be notified and she would lose Nicholas. This isolation of Nicholas was a direct consequence of Mr. France’s assaultive behaviour and further endangered Nicholas because he was removed from the support system put in place to protect him.
[38] Even when Nicholas became extremely ill, and even though Ms. Cruz had conducted Google searches that revealed how serious abdominal injuries could be and the potentially fatal implications of a child vomiting green bile, she and Mr. France decided to keep him at home. They could not risk bringing Nicholas to a doctor or the hospital with all of those injuries on him. At best, this was fueled by the fear of Nicholas being taken away from Ms. Cruz; at worst, they were worried about their own criminal responsibility and put their own self-interest ahead of Nicholas’ suffering. Regardless of whether Mr. France inflicted the fatal blow or the extent of his knowledge of Nicholas’ vomiting, or his understanding as to the potentially fatal consequences of Nicholas’ symptoms, his pattern of repeated abuse of both Nicholas and Ms. Cruz set the stage for the tragedy that followed.
[39] This abuse of Nicholas was not a matter of frustration or a momentary lapse in judgment. It was repeated and persistent over a period of time, during which that poor child’s life was pure misery. It flowed from Mr. France’s need to dominate and control everyone and everything in his path: from his spouse, whom he knew to be particularly vulnerable; to her toddler whom he had known only a matter of weeks; to the man with whom he shared a jail cell for a few weeks. He even beat the family dog.
Mitigating Factors
[40] Mr. France does not have a criminal record. It would appear that Mr. France had some difficulties in his childhood and teens, as well being the victim of some assaults as an adult. He has a supportive mother, and also has support from members of her church. These are mitigating factors.
[41] The defence submits that the difficult circumstances in which Mr. France has served his pre-trial custody is a mitigating factor in sentencing. He has been in custody for nearly four years, which is a long time to spend in a detention centre with limited programs. He has also spent much of that time in segregation and, apparently, has faced threats of violence from other inmates due to the nature of this offence. I do not necessarily agree that this is a factor that is properly treated in the same way as other mitigating factors in sentencing (such as remorse), as opposed to a matter that might entitle Mr. France to an enhanced credit for time served. However, whichever way I approach the issue, I am not inclined to give Mr. France a reduction in sentence for this factor. There was no specific evidence before me as to the precise nature of the alleged threats or what effect they had on Mr. France. There was no evidence as to what, if anything, he did to address the matter within the institution and no indication that there as any wrongdoing by the institution or its employees that contributed to the alleged difficult circumstances.
[42] The defence further submits that it is a mitigating factor that Mr. France pleaded guilty, accepted responsibility for his crime, and demonstrated remorse. I agree that the guilty plea is a mitigating factor. I also agree that Mr. France accepted responsibility for not taking Nicholas to the hospital on July 14, 2013 between 10:00 a.m. and when Nicholas died. However, I do not agree that Mr. France has shown any insight into the extent to which he is responsible for this tragedy, nor do I see any true remorse.
[43] Mr. France did not accept responsibility for assaulting Ms. Cruz, nor did he admit to assaulting Nicholas. He blamed Ms. Cruz for everything that happened to Nicholas. He is not required to admit any of those additional things relied upon by the Crown, nor is his failure to admit them an aggravating factor. However, it does limit the extent to which there should be any mitigation by virtue of his acceptance of full responsibility.
[44] In the pre-sentence report, Mr. Coccolo wrote: [9] Detective Barnes stated that the subject relayed zero culpability for the index occurrence he is currently before the Courts for. The subject conveyed the same lack of culpability regarding the index occurrence when interview[ed] by this writer by placing blame on his co-accused.
[45] Later, in the evaluation section of his report, Mr. Coccolo noted as follows: [10] Regarding the index occurrence the subject is before the Courts for, Mr. France did express remorse for the victim but did not convey full culpability stating that he did everything he could to save the victim, including that he attempted to provide CPR to the victim. He admitted to failing to provide the necessities of life, citing the term multiple times during the interview. … Mr. France places blame for the index occurrence on his co-accused; his non-acceptance of culpability is concerning.
[46] I concur with Mr. Coccolo’s assessment. At the end of the sentencing hearing, when I gave Mr. France the opportunity to speak on his own behalf, he started by saying he did not have a chance to defend himself and he got the worst end of everything. [11] He then, to his credit, offered his apology to Nicholas, his family, and the courts, calling this “the biggest mistake of my life.” However, he then digressed to blame Ms. Cruz, saying that he trusted her to know what to do and maintaining that he told her to take the child to the hospital, but she said giving him liquid Tylenol would be enough and he believed her. He then moved back to being contrite, describing this as a “very sad situation” and saying that he was “deeply saddened at losing a beautiful young man.” He then said he hoped Nicholas was “in a better place” and closed by saying, “May God and the angels give him the peace he deserves.” Finally he cried out in an impassioned voice, while weeping, “I didn’t do this.”
[47] This type of histrionic behaviour is not unusual for Mr. France. Many of the hospital workers noted that he would be calm and chatty with the nurses at one moment and then, out of the blue, start supposedly sobbing hysterically and pounding on the wall in his “grief.” Some of them noticed that this “sobbing” was not accompanied by tears. Likewise, in his interviews at the police station, Mr. France was behaving quite bizarrely with theatrical presentations of his grief, which he could turn on and off again like a tap. To several of the hospital staff and also to police officers at the station, within hours of Nicholas’ death, he said that he would give Ms. Cruz another baby. Whether this kind of behaviour is the norm for Mr. France, I cannot say. What it is not , however, is genuine remorse for the fact that he caused the death of an innocent two-year-old child. I give him no credit for this as a mitigating factor reducing the sentence that might otherwise be appropriate.
F. DENUNCIATION, DETERRENCE AND REHABILITATION
[48] In my view, the primary considerations in sentencing in this case are denunciation and deterrence. Indeed, primary consideration to those objectives is mandated by s. 718.01 of the Criminal Code.
[49] Even absent that direction in the Criminal Code, the primacy of these principles is underscored by the case law, both with respect to domestic assault and child abuse.
[50] In R. v. Rahaman, 2008 ONCA 1, dealing with domestic assault, The Ontario Court of Appeal held: [12] In cases involving violence arising out of an existing or failed domestic or romantic relationship, the predominant sentencing objectives are denunciation and deterrence. See, R. v. Boucher (2004), 186 C.C.C. (3d) 479 (Ont. C.A.) at p. 488 per Simmons J.A. Further, sentences imposed must promote a sense of responsibility in offenders and an acknowledgement of the harm done, not only to the immediate victim, but also to the community at large. In cases like this, the likelihood of enduring psychological trauma to the victim from the irrational, controlling and obsessive nature of the misconduct is significant.
[51] To similar effect is the decision of the Court of Appeal in R. v. Inwood (1989), 48 C.C.C. (3d) 173 (Ont. C.A.), in which Chief Justice Howland held: [13] This court has acted on the principle that, where there is a serious offence involving violence to the person, then general and individual deterrence must be the paramount considerations in sentencing in order to protect the public. In my opinion, this principle is applicable not only to violence between strangers but also to domestic violence. Domestic as saults are not private matters, and spouses are entitled to protection from violence, just as strangers are. This does not mean that in every instance of domestic violence a custodial term should be imposed, but that it should be normal where significant bodily harm has been inflicted, in order to repudiate and denounce such conduct. I am pointing out later that battered wives, where there are persistent or prolonged assaults, may require special consideration in determining the appropriate punishment.
[52] There is an even stronger argument that denunciation and deterrence must be in the forefront in cases involving violence against children, particularly very young children. As Moldaver J.A. (as he then was) so eloquently put it in R. v. D.(D.), 58 O.R. (3d) 788 (C.A.), “Our children are at once our most valued and our most vulnerable assets.” [14] In another decision, this time as a trial judge, Moldaver J. (as he then was) wrote: [15] The principles of sentencing in cases such as this are only too well-known. General deterrence and denunciation must take precedence over the other recognized principles of sentencing. Serious crimes of violence against defenseless children warrant a strong and firm response from the courts. Children are amongst the most vulnerable in our society. Unquestionably, parents occupy a position of trust towards their children. Child abuse amounts to a gross violation of that trust. Parents who would engage in child abuse must know in no uncertain terms that such misconduct is inexcusable, without exception, and that it will not be tolerated. This is particularly so in cases such as this where the death of a helpless and innocent child is the legacy of such abuse. The imposition of a denunciatory sentence has a twofold purpose. It is designed to express society's abhorrence and absolute repudiation of child abuse, especially when that abuse leads to death. Moreover, a denunciatory sentence serves to affirm and validate two of society's core values; namely, respect for human life and special protection for those most vulnerable to abuse, in this case, children.
[53] Denunciation and general deterrence are required in this case to send a strong message that abusive conduct such as this will not be tolerated in our society. It is particularly important that the penal consequences of failing to obtain life-saving medical treatment for a child should be more severe than any punishment that would have been meted out for underlying abuse of that child. It should never be tempting to risk ignoring treatment rather than facing the consequences for abuse or negligence.
[54] Specific deterrence is also an important factor in this case. Mr. France simply does not get it. He still sees himself as some kind of saviour for performing CPR and sees his culpability as based on the “mistake” he made in believing that Ms. Cruz knew best what to do for Nicholas. With that attitude, he is at risk for repeating this kind of behaviour in the future. It is crucial to bring home to him that such conduct will carry a stiff punishment.
[55] Although denunciation and deterrence are paramount, rehabilitation is also crucial in this case. The question is how to achieve it. Mr. France was 36 years old when he met Ms. Cruz. She already had a two-year-old. Within weeks of meeting her, he had given her a promise ring, talked to her about marriage and said he wanted children of his own. Within hours of Nicholas dying, he was already talking about giving Ms. Cruz another baby, as if children were replaceable commodities. In his interview with police just after Nicholas’ death, Mr. France carried on at great length about how much he loved children and kept referring to another child of his whose mother had removed him from this jurisdiction and how devoted he was to getting that child back. This suggests to me that Mr. France yearns to be a parent. Given the way he treated Nicholas, this is a frightening scenario. His extreme controlling and abusive attitude is not conducive to appropriate parenting. His notions as to how a child should behave, and how discipline can and should be imposed, are medieval. He needs education and he needs a significant attitude change before he is safe to be around children. Hopefully with psychological counselling, empathy training, and perhaps courses on parenting skills, this can be achieved. However, it will not happen overnight. Like deterrence and denunciation, this objective suggests a longer rather than shorter sentence.
G. PARITY
The General Principle
[56] A sentence imposed on one offender should not be disproportionate to other sentences imposed in like circumstances. To the extent possible, similar offenders should receive similar sentences for similar crimes committed in similar circumstances. While this principle of parity is an easily understood concept, it is often difficult to apply in a real-life case, for in the real world no two offenders are ever alike and the manner in which offences are committed is infinitely variable. Nevertheless, it is important to consider comparable cases to ensure that the sentence imposed on Mr. France is not out of line.
R. v. Marleny Cruz
[57] My starting point is the sentence imposed on Ms. Cruz for the very same crime: manslaughter by failing to provide the necessities of life for Nicholas, resulting in his death. On a joint submission, she was sentenced to six years. Notwithstanding that Mr. France had stepped into a parental role and had responsibilities in that regard to Nicholas, as his biological mother and as a question of fact, Ms. Cruz was his primary caregiver and had paramount responsibility for his well-being. In that sense, her moral blame-worthiness is higher. However, there are other factors that warrant a higher sentence for Mr. France.
[58] First, as a general rule, a proposed sentence recommended by both counsel will be respected unless it is so manifestly unfit that it would be contrary to the interests of justice to impose it. Therefore, a sentence imposed as a result of a joint submission does not have the same precedential value as a sentence arrived at by the sentencing judge as an independent exercise of discretion.
[59] Second, Ms. Cruz’s sentence was based on an agreed statement of fact which stated, inter alia , that the fatal blow to Nicholas’ stomach was intentionally inflicted, that it was not being alleged that Ms. Cruz inflicted the fatal blow or caused any of the other injuries to Nicholas, and that the only two people who had access to Nicholas at the time of the fatal injury were Ms. Cruz and Mr. France. Further, it was an agreed fact that Mr. France had assaulted Nicholas on prior occasions and had also assaulted Ms. Cruz.
[60] Third, the agreed facts before the Court on the sentencing of Ms. Cruz included the following mitigating factors: a. sexual and physical abuse as a child; b. extreme physical and sexual abuse at the hands of Mr. Donaldson; c. losing custody of her three children; d. continuing physical and emotional abuse at the hands of Mr. France; and, e. being a witness to Mr. France’s continued abuse of Nicholas
[61] Fourth, Ms. Cruz mourns the loss of her child and is deeply remorseful. That is a mitigating factor not inuring to Mr. France’s benefit. In addition, Ms. Cruz will be deported from Canada upon serving her sentence, a penalty that will not be visited upon Mr. France, who is a Canadian citizen.
[62] Finally, Mr. France, by his conduct, has far more aggravating factors weighing against him, most notably his prior and repeated abuse of Nicholas and also of Ms. Cruz.
R. v. Alexander
[63] Both parties referred to the case of R. v. Alexander, 2011 ONSC 6839, in which I sentenced the mother of a 19-month-old to imprisonment for 11 years for failing to obtain necessary medical treatment that would have saved his life, a decision subsequently upheld by the Court of Appeal. [16] In that case, the offender had, in the course of bathing the child, scalded him severely from the waist down. Rather than seeking medical attention, she applied Vaseline and gauze and then covered up the injuries with a sleeper. She lied to others about the injury, including the boy’s father, with the result that nobody else knew the severity of the burn. For part of the time that the child lay in agony in his crib, Ms. Alexander went shopping, leaving him alone. When his father came home from work, the child was asleep (or unconscious). The father wanted to look at the burns, but Ms. Alexander cautioned him not to wake the child because she had just managed to get him to sleep. Later in the night, Ms. Alexander found the child in his crib, unresponsive. She then called 911. That was 12 hours after the injury occurred and the boy was already dead.
[64] In some ways, the circumstances of Ms. Alexander’s crime are more egregious than is the case for Mr. France. She inflicted the injury on her son that ultimately caused his death and was also the one who had primary care of the child at the time. The injury itself was also more horrific than the injury suffered by Nicholas, and the child’s pain and suffering would have been more obvious (screaming and vomiting before becoming unconscious). Ms. Alexander actively covered up the injury from the child’s father, thereby preventing him from taking action. She had the frail hope that the injury would not be fatal, but essentially her actions throughout were driven by her own self-interest. By way of contrast, Mr. France has not been proven to have caused the injury to Nicholas’ abdomen that caused his death. He did not have primary care responsibility for Nicholas and was not the child’s biological father. Anytime he left the home, Nicholas was left in the care of his mother. Mr. France did not hide the injuries from Nicholas’ mother. She was fully aware of Nicholas’ condition.
[65] However, Nicholas’ suffering should not be minimized. He was being slowly poisoned by the contents of his intestines leaking into his stomach. He was unable to eat, moaning in pain, dizzy, disoriented and repeatedly throwing up green bile. It must also be noted that this went on for a longer period of time – two to three days for Nicholas, as opposed to 12 hours for Ms. Alexander’s child.
[66] Ms. Alexander was a 22-year-old first offender, which was a mitigating factor. The scalding was an isolated incident. There was no prior history of abuse. Mr. France has no criminal record, but was 36 years old at the time of his offence. The blow to Nicholas’ stomach, regardless of how it was caused, was not an isolated incident. Nicholas had been beaten and abused by Mr. France over the two to three week period prior to his death. The outward manifestations of these assaults were such that Nicholas was isolated and hidden at home, away from daycare workers and a babysitter who would have reported his injuries to the CCAS. It was because of those injuries that Ms. Cruz was afraid to get medical help for Nicholas, when she knew he was very ill. She feared, with considerable good reason, that when CCAS saw the injuries on Nicholas’ body, she would lose custody of him. I do not condone Ms. Cruz’s decision. She was justifiably sentenced to six years in prison for her failure to get help for her son. However, I do note that it was Mr. France’s assaults on Nicholas that drove her to this unfortunate decision. Furthermore, in coming to that decision, she was at a very low point in her life as a result of Mr. France’s repeated assaults on her and on Nicholas. I accept that Mr. France might not have anticipated that Nicholas would die, nor would he have wanted that result. Nevertheless, his own motivation in not getting help for Nicholas was to avoid getting himself in trouble for the obvious assaults that Nicholas had suffered, the marks of which were all over him.
[67] Thus, while the two cases have many differences, there are some parallels. There were aggravating factors present for Ms. Alexander that do not apply to Mr. France. On the other hand, there are also aggravating factors for him that are worse than in the Alexander case, most notably the prior abuse of both Nicholas and Ms. Cruz.
R. v. DaSilva
[68] Defence counsel relies on this case in which a 25-year-old mother was sentenced to three years in prison for manslaughter, after a guilty plea. [17] Over a four-day period, Ms. DaSilva left her two-year-old unattended for extended periods of time, without adequate food or water, while she spent time with her boyfriend and went dancing. The last occasion was 24 hours during a July heat wave. The child died of dehydration. The mother had no criminal record and there was no history of prior abuse. The Court of Appeal upheld the sentence, stating (at para. 12) that “the sentence is at the very bottom of the range of what would constitute a fit sentence” but that deference must be accorded to the trial judge’s decision.
[69] I do not consider the R. v. DaSilva (2005), 203 C.C.C. (3d) 1 (C.A.) decision to be applicable here. That was a case of simple neglect. Apart from being left alone, the child was not otherwise in peril. Nicholas, however, was injured and critically ill and Mr. France (and Ms. Cruz) deliberately did not get medical help for him. Also, Mr. France’s prior abusive and assaultive behaviour to both Ms. Cruz and Nicholas are serious aggravating factors. The circumstances are not comparable.
R. v. Siconolfi
[70] The defence also relies upon the R. v. Siconolfi, 2015 ONCA 896 [18] decision, which is somewhat closer to the mark. As in DaSilva, a first-time offender mother left her two-year-old daughter alone and she died of heat stroke. In addition, the mother beat the child with her hands and an object two to three days prior to her death, which did not cause her death but compromised her health. The six-year sentence imposed by the trial judge for criminal negligence causing death was upheld by the Court of Appeal, with brief reasons. This case does involve a prior assault and then neglect, with the neglect causing the death. However, on the limited information available in the reported decision, it is difficult to assess whether there were mitigating factors reducing the sentence from what it might otherwise be. Also, the nature and extent of the injuries are not known, and I cannot compare them to what Mr. France did to Nicholas. I note, however, that it looks as though there was only one incident of assault, yielding multiple injuries, whereas Mr. France assaulted Nicholas many times. Mr. France also has the additional aggravating factor of having assaulted Ms. Cruz.
[71] Thus, while I see this decision as being of some assistance and within the range of sentences appropriate for Mr. France, it is difficult to be more precise than that.
Other Cases Cited by the Crown
[72] A number of the cases cited by the Crown involve far more extreme brutality than was exhibited by Mr. France in this case. Thus, I would distinguish the following on that basis: R. v. Turner (1997), 185 N.B.R. (2d) 190 (N.B. C.A.) [19] (parents of a three-year-old sentenced to sixteen years – child died of starvation and was covered in cuts, bruises, ulcers and broken bones that showed abuse over a prolonged period); R. v. Plein, [2015] O.J. No. 1935 (S.C.) [20] (offender sentenced to 18 years minus credit for pre-sentence custody for criminal negligence and manslaughter for deaths of disabled sister from sepsis and elderly mother from starvation); and R. v. Goforth, 2016 SKQB 75 [21] (one accused convicted of second degree murder and the other of manslaughter – two children severely maltreated and starved over an extended period of time).
[73] I have also considered the case of R. v. Cox, 2011 ONCA 58, 271 O.A.C. 77 [22], but also do not find it particularly helpful. In that case, the accused took over the care of her autistic and developmentally delayed sixteen-year-old sister after their mother died. The victim was brutally treated over a period of about seven years, ultimately dying of starvation in the accused’s basement, covered in cuts and bruises. The offender was sentenced to nine years for manslaughter, criminal negligence causing death and failure to provide the necessaries of life. Her husband, who lived in the house and knew about the neglect of the sister in the basement, was sentenced to a conditional sentence of two years less a day. Ms. Cox appealed her conviction and sentence. On the sentence appeal she relied primarily on the disparity between her sentence and that imposed on her husband. The Court of Appeal upheld the conviction and sentence, finding that the sentence was within the appropriate range. The Court of Appeal held that the sentencing judge had adequately addressed the disparity between the two sentences based on the fact that the husband had pleaded guilty early, had shown genuine remorse, had not been the primary caregiver and was not the legal guardian, had worked outside the home 70 hours a week, and was merely passive, having played no active role in the victim’s death. The circumstances of that case are not comparable to the one before me.
[74] In R. v. A.A.E., 2004 BCCA 220, 201 B.C.A.C. 7 [23], a husband and wife took in two children, aged 39 months and 16 months, who were children of the wife’s stepsister. Six weeks later, the older child died of pneumonia after aspirating vomit. His body was covered with bruises, abrasions and scrapes and the area around his genitals indicated abuse in that area. He also had internal injuries consistent with a severe blow to the abdomen and was in a state of dehydration and starvation. The younger child survived, but also had significant injuries and weight loss. The trial judge sentenced both the husband and wife to 12 years for manslaughter, as well as concurrent sentences for various assault charges. The 12 year sentence was a global one, and would have been eleven years based on the manslaughter charge alone, the extra year being added to reflect the abuse of the second child. On appeal, the British Columbia Court of Appeal reduced the twelve-year sentence to ten years to take into account the substantial disadvantage in the lives of the offenders, both of whom were aboriginal. The Court of Appeal noted that the trial was pre- R. v. Gladue, [1999] 1 S.C.R. 688 [24], but that sentences involving aboriginal offenders should be re-assessed in light of the principles enunciated in Gladue. It follows that, but for the Gladue issue, the Court of Appeal would have upheld the sentence. Clearly, the circumstances in this case are worse than the crime committed by Mr. France. On the other hand, he does not have the mitigating effect of the Gladue principles. While he suffered some disadvantage in his youth, his circumstances were not as unfortunate as the two offenders in that case.
[75] The Crown also relies on the decision of the Nova Scotia Court of Appeal in R. v. Kelly (1989), 89 N.S.R. (2d) 361 [25], a case in which a 19-month-old child died essentially of the same mechanism that killed Nicholas: a blunt force trauma to the abdomen, causing perforation of the bowel and gradual poisoning as a result, with worsening symptoms over a period of two days, during which time the parents failed to get treatment for him because they were afraid of the consequences. Previously, child welfare authorities had removed the child from the home because the father had hit him in the face, causing bruises. After some counselling, and with supervision, the child was returned to his parents. Two days prior to the child’s death, the parents were involved in a heated argument and the baby was crying. In frustration, the mother karate chopped the child in the stomach. By the next day, the child’s abdomen was distended and after that, his condition worsened. The parents discussed going to a doctor but were afraid of the consequences. They did nothing and the baby died. After two separate trials, the mother was sentenced to nine years and the father to seven years. Both offenders appealed, and the Crown cross-appealed. The appeals were heard together. The Nova Scotia Court of Appeal held that the sentences imposed were within an acceptable range for manslaughter and there was justification for imposing a longer sentence on the mother who had inflicted the fatal injury. The appeal court declined to intervene because it could not be said that the sentences were “clearly wrong.”
[76] Mr. France is not in the same position as either the mother or the father in Kelly. Because I am not able to say that Mr. France inflicted the fatal blow to Nicholas’ abdomen, the father in Kelly could be seen to be in a position similar to Mr. France in respect of the fatal injury itself. However, Mr. France’s prior treatment of Nicholas was far worse than the situation in Kelly, and to this must be added his treatment of Ms. Cruz. Although he was not the natural father of the child, I consider Mr. France’s level of blameworthiness to be higher than the father in Kelly. On the other hand, although the mother in Kelly actually caused the fatal injury, she did so in a sudden loss of control in a moment of pressure and frustration. She did not deliberately strike her child in order to discipline him and there was no ongoing and systematic abuse of the child. I consider Mr. France’s level of culpability in Nicholas’ death to be closer to the mother in Kelly than to the father.
H. CONCLUSION
[77] In my opinion, the sentence suggested by the defence of the equivalent of six years does not meet the goals of denunciation and deterrence, nor does it reflect the gravity of the offence. Further, the aggravating factors present here require a higher sentence, as does the principle of parity.
[78] The ten-year sentence proposed by the Crown is within the appropriate range. However, in my view, it is somewhat disproportionate to the six-year sentence imposed upon Ms. Cruz. As the natural mother of the child, she bore a greater responsibility to protect him, including to protect him from Mr. France. That said, she herself was a victim of Mr. France’s brutality and in an extremely vulnerable state at the time, which was a significant mitigating factor for her.
[79] I am not unmindful of the objective of rehabilitation. However, Mr. France simply does not understand the depths of his own wrongdoing. He has not yet had the benefit of counseling and education with a view to adjusting his antiquated and twisted views of parenting. A lengthier sentence does not interfere with the goal of rehabilitation, and may even enhance it.
[80] Taking all of these factors into account, in my opinion the appropriate sentence is nine years. I will allow a credit of six years, which is slightly more than 1.5 to 1, to reflect the difficult circumstances of the time served to date.
[81] In addition to the prison term, the Crown sought ancillary orders as follows: (1) a DNA Order; (2) a s. 109 weapons order for life; (3) forfeiture of the handgun, knives and marijuana seized from the home; and (4) forfeiture of Mr. France’s security guard uniform.
[82] The defence took no issue with respect to the first three forms of ancillary relief sought, and those orders shall issue accordingly. However, the defence raised an issue as to whether I had any jurisdiction to order forfeiture of the security guard uniform.
[83] In R. v. Trac, 2013 ONCA 246, 115 O.R. (3d) 424 [26], the Ontario Court of Appeal held that “offence-related property” is a “broad category” that “ reaches property used in any manner in connection with the commission of an indictable offence.” The Court noted that the section dealing with forfeiture of offence related property “is aimed at the means, devices or instrumentalities used to commit offences.” Mr. France talked incessantly about his status as a security guard. He talked about it to his cellmate, Mr. K, and various members of the hospital staff who tended on Nicholas. He also raised it many times with the police officers who dealt with him after Nicholas’ death, trading on his status as a security guard to suggest he was “one of them.” More importantly, he talked about it to Ms. Cruz and he had the uniform hanging on a hook conspicuously in their bedroom. There was no reason whatsoever for that uniform to be flaunted in that manner. He had only worn it for a brief time in a legitimate capacity, for about 10 days or so, seven years earlier. He used that uniform as a symbol of authority and intimidation, and he did so during the time that he was abusing both Ms. Cruz and her child. I find that the uniform was used to facilitate the commission of an offence, and in that sense is offence related property subject to seizure under s. 490.1 of the Criminal Code. A forfeiture order shall also issue in respect of the uniform.
MOLLOY J. Released: June 22, 2017