Court File and Parties

Court File No.: CR-16-00019537-0000

Superior Court of Justice

Her Majesty the Queen

v.

A. F. and C. R.

Reasons for Sentence

Before the Honourable Justice R. Maranger

on August 9, 2018, at OTTAWA, Ontario

Appearances:

J. Cavanagh, Counsel for the Provincial Crown P. Giancaterino/J. Clarke, Counsel for A. F. and C. R.

Table of Contents

Entered on Page

Reasons for Sentence 1

Legend

[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – Indicates preceding word has been spelled Phonetically.

Transcript Ordered: August 14, 2018 Transcript Completed: August 21, 2018 Transcript Submitted for Judicial Review: August 22, 2018 Approved by Maranger, J.: September 10, 2018 Ordering Party Notified: September 10, 2018

Reasons for Sentence

Thursday, August 9, 2018

Maranger, J.: (Orally)

A. F. and C. R. stood trial on a 24-count indictment concerning allegations of physical and psychological abuse against four of their children. C. R. is the adoptive or biological father of the four complainants. A. F. acted as their step-mother during the timeframe referenced in the indictment. The allegations span 10 years. The trial in this case took 27 days spread out over 5 months. The allegations were serious and included chronic physical, psychological and sexual abuse.

C. R. faced 18 counts, the thrust of the allegations were that he tattooed his four children against their will, chronically verbally and physically abused them, subjected them to degrading punishment, unlawfully confined them and administered drugs to them against their will.

A. F. faced six counts, the thrust of the allegations against A. F. were that she sexually assaulted B. L. (1), was a party to some of the offences committed by C. R. and was criminally negligent in allowing the violence committed by C. R. to take place. Furthermore, it was alleged that these crimes took place on a chronic basis over 10 years.

On March 15, 2018 I convicted A. F. of the following three counts: one count of criminal negligence causing bodily harm, one count of unlawful confinement and one count of assault. The convictions all related to the one complainant, B. L. (1).

I convicted C. R. of 10 counts, including 3 counts of aggravated assault, assault with a weapon (a knife) assault causing bodily harm and simple assault involving each of the complainants, and an unlawful confinement conviction involving B. L. (1) specifically. My reasons for those decision, those convictions are set out in R. v. A.F. and C.R., 2018 ONSC 1511.

On July 18, 2018 I sentenced A. F. to a non-custodial disposition which included an 18-month conditional sentence. In the reasons for sentencing A. F. I differentiated the degree of responsibility between A. F. and C. R. by stating:

Suffice it to say that C. R.’s liability and responsibility for the crimes committed in their household against their children far exceeded those committed by A. F.

With that said, however, paragraph 62 to 64 from the trial decision bear repeating here.

After all was said and done, I did not accept the Crown’s general proposition that this was a home where the four complainants were chronically abused and persistently subjected to extreme violence over a 10-year period. That proposition was rejected because I found that the complainants exaggerated the extent of any abuse that took place. I arrived at that conclusion because of the lack of independent physical evidence of injuries, especially in a case where the opportunity for third party professionals to observe injuries would have been abundant.

Where the evidence of any specific allegation, incident of assault or abuse came from the uncorroborated testimony of a single complainant, I found that the Crown had not met their burden. The level of unreliability in the testimony of each individual complainant taken with the evidence as a whole left me with a reasonable doubt in those circumstances.

However, I did find that the Crown had established certain specific incidents of assault and abusive behaviour beyond a reasonable doubt. This was so for instances where a complainant’s testimony about an incident was corroborated by uncontroverted physical evidence in conjunction with the testimony of one of the other complainants giving the same or a similar account of a specific incident. And in one instance by reason of an admission by the accused, A. F., during her testimony.

As indicated, C. R. was convicted of 10 counts and acquitted of 8. In his case he was found guilty of at least one crime committed against each of the four complainants. Regarding the crimes against the complainant B. L. (1), he was convicted of common assault, assault causing bodily harm, unlawful confinement and one count of aggravated assault.

In convicting C. R. of Count 4, a count of simple assault jointly charged with A. F. I made the following findings at paragraph 82 in the reasons for judgment.

Count 4 is an allegation of assault against both A. F. and C. R. I am satisfied beyond a reasonable doubt that the two accused at various times over the course of the 10-year period would have slapped or hit B. L.(1) without justification, thus there will be a finding of guilty as charged on Count 4.

The basis of this conviction includes that the other complainants corroborate that from time to time C. R. struck, slapped and smacked B. L.(1). I also accept beyond a reasonable doubt that corporal punishment, beyond what was justified, was from time to time used by C. R. was to some degree corroborated by all of the complainants including G. L.

With respect to the convictions relating to unlawful confinement and assault causing bodily harm, these convictions were founded on very specific events that occurred in September 2013. The events in question were described in the following summary of B. L.’s (1) evidence taken from paragraph 23 “O” and “P” in the trial decision.

In September of 2013 B. L. (1) turned 16 years of age and she decided to leave the R. Street home. She testified that she was going to live with a friend, C. B. (ph) and her family. Her plan was to go to school with her personal identification and to never return.

A. F. and C. R. found out about B’s (1) plan through B. L. (2). A. F. and B.(2) attended the school and prevented B. L. (1) from executing the plan. They cleaned out her locker, yelled at her at the school and brought her back to the R. Street residence. She described seeing C. R. in the window gesturing with his hand across his throat to indicate how much trouble she was in as they arrived at home. B. (1) testified that when she arrived home after this incident, she received the worst beating she had ever received by C. R. He broke her phone. A. F. and B. L. (2) were both present. After this beating occurred B. (1) was then confined to her bedroom for five days against her will until the school called.

The basis for convicting C. R. of the two charges connected to the events of September 2013 are contained at paragraph 77, 78 and 79 of the trial decision. At paragraph 78 I indicated:

I am satisfied beyond a reasonable doubt that C. R. assaulted B. L. (1) and caused her bodily harm at that time. I am further satisfied beyond a reasonable doubt that the two accused confined her to her bedroom against her will for several days until school authorities called out of concern. Therefore, I find the two accused guilty of Count 1 and C. R. guilty of Count 7.

The basis of these convictions is the following:

B. L. (1), B. L. (2) and D. L. all confirmed the events of September 2013 to a certain degree, that is that:

(a) C. R. gave a beating to B. L. (1) because she tried to leave the home; (b) Photographs of the bruises had been corroborated by independent witnesses, H. F. (ph) and C. B. (ph); (c) The school officials having to contact the home corroborates the length of time B. L. (1) was missing from the school; and, (d) B. L. (2) and D. L. corroborated B.(1) being confined to her room over several days.

And finally, A. F. admitted to B. (1)’s being confined to her room during her testimony.

The basis of the conviction of aggravated assault against the complainant is set out at paragraph 83, 84 and 85 as regards B. L.(1)

Count 5 is an allegation as against C. R. of aggravated assault on B. L. (1). To establish an aggravated assault the Crown must prove that an assault took place and that it wounded, maimed, disfigured or endangered the life of B. L.(1).

The factual allegation that forms the basis for this offence is that the accused, C. R., put a tattoo on the body of B. L.(1) when she was nine years old. The evidence clearly supports a finding that the accused, C. R., put a home-made tattoo on the shoulder of B. L.(1) when she was nine years old, that she did not consent to it, that it caused her pain and that it left her with a permanent mark.

The method described by B. L. (1) and the other complainants were similar and believable that a scalpel or a blade was used to cut an outline in the skin, piercing the skin and then a needle was dipped in ink to create the tattoo. The tattoo on B. (1) consisted of a star shaped mark on the top of her back, it does not look professional and is unsightly. It can be seen at page 5 of Exhibit 5.

I found C. R. guilty of Count 5 on the basis that I am satisfied beyond a reasonable doubt of the following:

The tattoo was put on B. (1) against her will and C. R. knew this was the case.

The method used by C. R. to tattoo B. (1) involved cutting open, piercing the skin which constitutes a wounding.

In the alternative, the tattoo left on her body is arguably a form of disfigurement that could make out the offence of aggravated assault.

Regarding the crimes against the complainant, B. L. (2), C. R. was convicted of one count of simple assault, one count of assault with a knife and one count of assault causing bodily harm. The basis for these convictions are set out at paragraphs 87, 88, 89 and 91 of the trial decision.

Count 10 is one of simple assault. I found C. R. guilty of this count. All of the complainants, even G. L., testified to some degree of violence being exercised by C. R. against B. L.(2). I accept B. L’s (2) evidence on the issue that C. R. would hit him and that he would fight back.

Count 11 is one of assault with a weapon, a knife. I found C. R. guilty of this count. B. L. (2) testified that in an altercation with C. R., C. R. jabbed him in the arm with a pocket knife. Immediately after describing the incident to the Court, B. L. (2) pointed to a scar on his shoulder which fit the type of injury described. In my estimation, this to some degree corroborated his description of the incident. Furthermore, he seemed to downplay the incident and nature and extent of the injury. His description was clear and matter of fact.

Furthermore, B. L. (1) testified that she was there when it occurred. She said she saw C. R. stab B. L. (2) in the back of the shoulder and that there was a lot of blood. Well that differs to some extent as to where the injury and jabbing took place, it nonetheless lends credence to the fact that an incident involving a pocket knife took place. I have no doubt that C. R. jabbed B. L. (2) with a pocket knife thus making out the offence of assault with a weapon, namely a knife.

Count 13 was a count of assault causing bodily harm. I found the accused guilty on this count. All four complainants including G. L. at various times testified that B. L. (2) got the worst of it from C. R. They testified B. (2) would have from time to time been assaulted to the extent that he received injuries that were more than trifling. B. L.’s (2) testimony is corroborated by the multiple complainants and I am satisfied beyond a reasonable doubt that he was hit from time to time by C. R. causing bodily injury.

Regarding the crimes against D. L. C. R. is convicted of one count of assault causing bodily harm and one count of aggravated assault. The basis of these convictions are set out at paragraphs 97 and 98 of the trial decision.

On Count 18, assault causing bodily harm, I found C. R. guilty based upon the evidence concerning the incident where D. L. describes fighting with C. R. and receiving an injury to the top of his eye. This is an incident that I am convinced beyond a reasonable doubt took place. It was corroborated by G. L., although during his recantation he tried to claim that it was accidental. I reject that part of G. L.’s evidence.

I accept that D. L. and C. R. were involved in an altercation and that D. L. received an injury that ultimately required medical attention. Assault causing bodily harm was made out on the basis of that incident alone. In any event, I am satisfied beyond a reasonable doubt, based on the totality of the evidence that C. R. would have hit D. L. from time to time causing sufficient injury to constitute bodily harm during the course of the 10 years stipulated in the indictment.

On Count 19, aggravated assault, I find the accused guilty. I find as a fact that C. R. tattooed D. L. when he as a young child under the age of eight years. He did not consent to it. The [indiscernible] described by the various complainants was that his skin was cut open, pierced with a blade and ink was deposited with a needle leaving a permanent mark. These acts by C. R. satisfy me beyond a reasonable doubt that the required elements of an aggravated assault had been made out.

Regarding G. L., C. R. was convicted of one count of aggravated assault. The basis of the conviction is set out at paragraph 102 of the trial decision.

On Count 23, aggravated assault, I find the accused, C. R., guilty. C. R. tattooed G. L. when he was six or seven years old using the same methods used on the other complainants. He did not consent to it. He pierced his skin with a scalpel blade and deposited ink with a needle thus making out the offence as charged.

The aforementioned excerpts from the trial decision fairly summarized the circumstances, nature and extent of the crimes committed by C. R. in this case.

Position of the Parties

The Crown and defence are very wide apart in terms of the penalty to be imposed on C. R. The Crown is seeking a global period of incarceration in the range of six to seven years for all of the offences.

Counsel representing C. R. suggests a period of between two years less a day to two years, six months incarceration is appropriate. He further submitted that a combination of incarceration together with the portion served in the form of a conditional sentence might be appropriate.

Sentencing Principles

As stated in the A. F. sentencing decision, crimes committed by a parent against their children are at their core, always reprehensible, they often instil emotional reactions, a cry for the very stiffest of penalties, they strike at the heart of all right-minded members of the community. However, in our society a judge’s responsibility when deciding the appropriate sentence is far more complex than to simply exact vengeance upon persons convicted of crimes.

My task here is to dispassionately apply the sentencing principles set out in the Criminal Code of Canada, to take into consideration the gravity of the offences, the degree of moral blameworthiness of the offender, the personal circumstances of the offender, the circumstances of the offences, the aggravating and mitigating factors and the jurisprudence showing the range of penalties for similar offences. Armed with all of this information, I then do my level best to craft a fit and just sentence.

Section 718 of the Criminal Code states:

The fundamental purpose of sentencing is to protect society and to contribute along with crime prevention initiatives respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) To deter the offender and other persons from committing offences; (c) To separate offenders from society where necessary; (d) To assist in rehabilitating offenders; (e) To provide reparations for harm done to victims or to the community; and, (f) To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

Objectives

Offences against children, 718.01:

When a Court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

In that these were clearly crimes against persons under 18 years of age, committed by a parent, the primary consideration in determining the appropriate penalty is denunciation and deterrence and thus these two objectives were at the forefront of my mind in deciding the appropriate sentence in this case.

C. R. – Gravity of His Offences

The crimes for which the accused was convicted were serious, numerous and were committed against his children. Furthermore, some of the crimes were spread out over a long period of time, and in some instances occurred when the complainants were quite young. With that said, it is important to note that C. R. was found not guilty of eight of the counts charged, some of them very serious.

C. R.’s Personal Circumstances

C. R. is in his mid-forties. He was initially raised by his mother who died when she was quite young of an overdose. He was then raised by an aunt. He has less than a high school education. He is on social assistance. He has had severe problems with addiction to prescription medication, including multiple hospitalizations for overdosing. He currently has supervised access pursuant to a CAS order to the two youngest children who are now in the care of A. F. He exercises these visits of one hour every two weeks. He wishes to get back with A. F. and the two youngest children.

C. R. has a criminal record including convictions for spousal assault in 2004, assault in 2000, assault in 1997 and uttering threats in 1996. He has never served more than 60 days incarceration for these convictions.

Mitigating Factors

I tend to side with the Crown in saying that there are little in the way of mitigating factors here. The pre-sentence report is not positive. The accused seems to be incapable of recognizing or accepting responsibility for the gravity of what took place here. After a 27-day trial he was convicted of 10 counts of crimes committed against his children. His only lukewarm apology is for the tattooing. Even there he casts blame on the biological mother for his actions. He speaks of getting back together with the mother to raise the two younger children. He just doesn’t seem to get it at all.

The only evidence of mitigation is perhaps that he has a limited education, that he was very well behaved while out on bail, he has undertaken programs such as parenting, anger management and bully awareness. It seems as well that he has taken control of his addiction issues.

Aggravating Factors

The sentencing provisions of the Criminal Code mandate that the abuse of someone under 18, particularly in a position of trust, constitutes an aggravating factor. Here the accused is convicted of abusing four children in his care. The assaultive behaviour here was not a one-off but a crime that occurred from time to time over the course of many years. Weapons were used. There were multiple victims. Some of the crimes would have occurred when the children were quite young. The damage to the children, now young adults, will last a lifetime. He was the primary parent.

I have considered B. L.’s (1) victim impact statement. Clearly, she was impacted by the terrible childhood that she had and that the impact will last a lifetime. As she put it:

Abuse is familiar; it is all I know. I didn’t have a sense of family. They took away my chance to connect with my mother and she died. I would have had more time with her if it was not for them. The baby I am having is not going to have grandparents, nor will he know about their grandparents. I feel like my child has a disadvantage because of my family. I have other family but his family I chose versus the family I grew up with. I feel like I did not have a fair chance in life. I know that my siblings are somewhere they should not be and I am concerned for their futures. I had to learn how to do everything on my own from a really young age. It was hard because you are supposed to have parents to teach you things.

Case Law

The Crown has filed cases dealing with child abuse. The thrust of the jurisprudence is that general deterrence and denunciation are the paramount considerations. In R. v. M.E., 2012 ONSC 1078, Justice Casey Hill stated the principles well when he indicated:

Childhood is expected to be very much about adventures, learning, fun, exploration and defining a sense of self. Memories of childhood should be good ones, eagerly recall a time of development and innocent happiness with parental protection from harm and negative influences. The complainants here experienced the nightmares of years of abuse at the hands of a parent, a childhood worth forgetting.

General deterrence is the paramount consideration in cases of physical and sexual abuse of children by a parent. All too often what goes on behind the closed doors of the home is invisible to those who might be in a position to help. Children, vulnerable members of society must be protected by severe denunciatory sentences from the courts in instances of systemic abuse. A civilized society accepts that children are entitled to look for protection to their parents, that parental brutality towards children cannot and will not be tolerated by the Courts.

Both counsel relied on the decision by Madam Justice Corrick, R. v. E.T., 2015 ONSC 903. In that case, a global penalty of 30 months incarceration was imposed. The abuse in that case was to one child, a four-year-old. The evidence showed that the parent bit the four-year old’s fingers and torso, put the child’s hand on a hot element of the stove until it blistered, struck the child with a belt, tied him to a chair with duct tape, hit his buttocks with a metal spatula to the point where skin was removed. In terms of the unlawful confinement, the child was placed in a storage closet with a bucket to be used a toilet from a Thursday to a Sunday. I suppose each counsel saw this case as somehow supporting their positions. Frankly, I saw it as a completely different case from the case I was dealing with here.

In my experience, child abuse cases are always difficult and the sentencing range can fall on a very wide spectrum. In R. v. D.D., 2018 ONCA 138, the Court of Appeal upheld a 15-year sentence I imposed on a father who abused his son. They approved the range I crafted in that matter of between 12 to 18 years. The abuse in that case was at the very furthest end of the spectrum of severity. Every veteran medical professional and veteran police officer associated with the matter said it was the worst case of child abuse they had ever seen. It was horrifying.

I am not going to try and place this particular case on a spectrum. It was a difficult trial in terms of dealing with the evidence and arriving at a just result. The trial decision I think supports this proposition. The range of sentence of six to seven years would have been the sentence I would have likely considered in this case if C. R. had been convicted of every single crime for which he was charged, and had I accepted the general proposition advanced by the prosecution as to what really took place in that home. I didn’t. The evidence did not support such a finding. I know there was abuse, I know the level of it was serious, I know that C. R. should go to prison. And when all is said and done, leniency is not really an option, but he must be sentenced for the crimes upon which he was convicted, not what he was charged with.

I also disagree with the penalty suggested by counsel for C. R. Two years less a day to two and a half years is a range that is not sufficiently denunciatory when all is considered.

When I take into account the aggravating and mitigating factors and the crimes for which C. R. was convicted, I believe the correct range to be between three and five years of imprisonment. And taking all factors into account, a sentence of four years incarceration in the case of C. R. is what I consider a just and fit sentence. I will credit the accused with 35 days of pre-sentence custody, leaving the warrant of committal to reflect that C. R. must serve a sentence of 3 years and 330 days in a penitentiary.

I would break down the sentence in the following terms:

On the counts of aggravated assault, the tattooing, I sentence the accused to one-year imprisonment on Count 5 involving B. L. (1) and one-year on Count 19 involving D. L. to be served concurrently, and one-year on Count 23 involving G. L. to be served concurrently.

On the count of assault causing bodily harm against B. (1), Count 7, one-year imprisonment to be served consecutively.

On the count of unlawful confinement, one-year concurrent.

On Count 4, a simple assault against B. (1), six months concurrent.

On the Count 11, assault with a weapon, a knife against B. L. (2), one-year consecutive.

On Counts 10 and 13, counts of assault and assault causing bodily harm against B. L. (2), one-year concurrent.

On Count 18, assault causing bodily harm against D. L., 330 days imprisonment to be served consecutively.

There will be an order the C. R. provide a DNA sample pursuant to Section 487 of the Code.

There will be a Section 109 weapons prohibition order for life.

With respect to the victim fine surcharge, the victim fine surcharge that is applicable will apply and the accused will be allowed five years to pay the fine.

Thank you.

MR. CAVANAGH: I’ll ask to have the charges on the older indictment marked withdrawn please as against both the accused if the....

THE COURT: What is that? Sorry?

MR. CAVANAGH: I’m sorry, I’m just advised that there’s still an older – that older indictment...

THE COURT: Right.

MR. CAVANAGH...and I’m asking to have the counts on that older indictment marked withdrawn please.

THE COURT: All right. I am just going to sign the documents counsel, thank you.

MR. CAVANAGH: Thank you.

MR. GIANCATERINO: Thank you.

... MATTER COMPLETED

Form 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Linda A. Lebeau, certify that this document is a true and accurate transcript of the recording of Regina v. F. in the Superior Court of Justice, held at 161 Elgin Street, Ottawa, Ontario taken from Recording No. 0411_CR36_20180909_133109__10_MARANGRO.dcr which has been certified by Ruby Jacob in Form 1.

Date Linda A. Lebeau Authorized Court Transcriptionist (ACT) Secretary