Court File and Parties
COURT FILE NO.: CR-17-07341 DATE: 20190619 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – MARIO RODRIGUES Defendant
Counsel: Ms. Kim, for the Crown Mr. Brodsky, for the Defendant
HEARD: January 7-9, 14-18, 2019
Reasons for Sentence
EDWARDS J.:
Overview
[1] Mr. Rodrigues has been convicted of various offences related to the abduction of his daughter during the early morning hours of April 18, 2016, that resulted in an Amber Alert and Mr. Rodrigues driving his daughter at high rates of speed from Aurora to Pembroke, where ultimately his vehicle was involved in a single motor vehicle accident resulting in injuries to both himself and to his daughter. The charges that Mr. Rodrigues has been specifically convicted of are as follows: abduction (s. 283(1)); break and enter (s. 348(1)(b)); two counts of assault (s. 266); and dangerous driving causing bodily harm (s. 249(3)) of the Criminal Code.
[2] The sole issue that this court was required to decide was whether Mr. Rodrigues was not criminally responsible (“NCR”). I released Reasons for Decision rejecting the defence of NCR and convicted Mr. Rodrigues on all counts.
The Facts
[3] Mr. Rodrigues had a relationship with Juliet Dela Cruz (“Cruz”), that had been ongoing for a number of years. As a result of that relationship a daughter was born, who I will refer to as J.C. At the time of the abduction, J.C. would have been five years of age.
[4] While there was no formal custody order, there was no issue that Ms. Cruz had de facto custody of J.C., and that Mr. Rodrigues would occasionally see her. Mr. Rodrigues would periodically show up at Ms. Cruz’s residence, often unannounced and sometimes by prearranged appointment.
[5] In the week leading up to the abduction, Mr. Rodrigues had been at Ms. Cruz’ residence on a number of occasions, most recently the evening of April 17, 2016. Ms. Cruz believed that Mr. Rodrigues had left her residence and had gone to bed. At approximately 4:00 a.m., she awoke to the noise of some glass breaking on the first floor of her residence and she went downstairs. She was confronted by Mr. Rodrigues, who punched her in the face.
[6] Mr. Rodrigues then went upstairs to J.C.’s bedroom, where a further altercation took place between Mr. Rodrigues and Ms. Cruz. Ultimately, Mr. Rodrigues took J.C. and placed her in a car seat in his vehicle and drove off, ending up in Pembroke where his vehicle was involved in a single vehicle accident.
[7] An Amber Alert was issued and the Ontario Provincial Police (the “OPP”) observed Mr. Rodrigues travelling at very high rates of speed, such that it was determined that it was unsafe to pursue Mr. Rodrigues.
[8] As a result of the accident, Mr. Rodrigues was injured. His daughter suffered compression fractures of her vertebrae.
[9] The Victim Impact Statement that was filed in this matter by Ms. Cruz, reflects the pain and suffering that her daughter experienced as a result of the accident. Undoubtedly, she has experienced significant pain, although I do not have any medical evidence as to her present status. The impression that the court had at the time of the trial is that she has made a reasonably good physical recovery.
[10] While I rejected the defence of NCR, I did accept that at the time of the offences Mr. Rodrigues was suffering from a mental disorder that would fit within the legal definition of “disease of the mind”. I accepted the evidence of both experts who testified on behalf of the Crown and the defence that Mr. Rodrigues knew that his actions were legally wrong, and that the only real question was whether because of the mental disorder Mr. Rodrigues was deprived of the capacity for rational perception and, hence, rational choice about the rightness or wrongness of his actions. Ultimately, I concluded that the mental disorder was not of such severity that it would have prevented him from weighing the pros and cons of his actions, such that he would not have known that what he did was morally wrong. As such, the defence of NCR was not made out on the evidence before me.
Circumstances of Mr. Rodrigues
[11] Mr. Rodrigues is 38 years of age, single and has a college education. On all accounts he comes from a good family, as evidenced from the background information contained in the medical reports, as well as the fact that his parents attended the trial throughout. It is also evident from the fact that Mr. Rodrigues’ father who was one of his sureties, contacted the police while he was out on bail as a result of a breach of his recognizance.
[12] Mr. Rodrigues is unemployed, and before the incident and subsequent to the incident has been relying heavily on the financial backing of his parents.
[13] The medical evidence which I have reviewed in my Reasons dealing with the NCR defence, makes clear that prior to the incident and subsequent to the incident Mr. Rodrigues has been treated for his mental disorder. In December 2015, Mr. Rodrigues was brought to a local hospital by police, and in the medical records in relation to that occasion it was noted that Mr. Rodrigues was depressed and suicidal.
[14] Shortly before the incident, Mr. Rodrigues had been seen by a psychiatrist who took a history from Mr. Rodrigues that he had symptoms of anxiety and depression. Mr. Rodrigues was seen by the same psychiatrist approximately one week prior to the incident, at which time it was noted that Mr. Rodrigues was not suffering from any psychosis.
[15] Since the incident, Mr. Rodrigues was again seen by the same psychiatrist who ultimately discontinued treatment for reasons that appear to, at least in part, be caused by untruthful responses Mr. Rodrigues had made to the psychiatrist.
[16] Since being discharged from the care of this psychiatrist, I am advised that Mr. Rodrigues continues to have treatment with Dr. Vasdev, a psychiatrist who has provided the court with a brief letter that indicates that Mr. Rodrigues has been treated for schizophrenia since 2017, and that he attends his appointments consistently. Dr. Vasdev indicates that at the present time, Mr. Rodrigues is “stable” and that he is living with his parents. Dr. Vasdev further notes that Mr. Rodrigues has been cooperative, and that he is taking his medication consistently.
Position of the Crown
[17] In suggesting a sentence to this court of three and a half to four years less pre-trial custody, Ms. Kim stresses general deterrence and denunciation should be the primary considerations that this court should take into account. While Ms. Kim acknowledges that it may very well be in the best interest of Mr. Rodrigues not to impose any further jail sentence on him, it would not reflect the basic principles of general deterrence and denunciation.
[18] While in no way resiling from the principle position of seeking a sentence in the range of three and a half to four years, Ms. Kim suggests that in the event this court considers imposing a sentence along the lines recommended by Mr. Brodsky, that this court should impose a lengthy period of probation that would include provisions that would preclude Mr. Rodrigues having any contact with Ms. Cruz or his daughter, except where allowed pursuant to an order of the Family Court.
Position of the Defence
[19] Mr. Brodsky argues that the appropriate sentence that this court should impose is one that is non-custodial in nature. Mr. Brodsky notes that since Mr. Rodrigues’ arrest in April 2016, he has been incarcerated for 10 months and 15 days. The bulk of this incarceration arose as a result of Mr. Rodrigues breaching one of his bail conditions, as a result of which he was arrested and then ultimately dealt with. Mr. Rodrigues was released on house arrest in June of 2017. The terms of the house arrest, which were on the recommendation of counsel for Mr. Rodrigues, were fairly restrictive, including electronic monitoring.
[20] Mr. Brodsky noted in his submissions that as a result of the restrictive terms of his house arrest, Mr. Rodrigues was not able to visit his mother in hospital after she had suffered a heart attack.
[21] Mr. Brodsky quite rightly refers to the fact that at the time Mr. Rodrigues committed the offences for which he has now been convicted, that this court did find that he was suffering from a mental disorder which is an appropriate consideration that the court should take into account in imposing sentence.
[22] With respect to the assault and dangerous driving charges, Mr. Brodsky suggests these charges relate to one action and that they should be subject to the Kienapple principle. As for the actual conduct of Mr. Rodrigues on the day in question, Mr. Brodsky suggests that his actions were impulsive and that unlike other cases of child abduction where there was a real plan on the part of the abducting parent, that in this case the evidence clearly establishes that Mr. Rodrigues had no plan as to what he ultimately would have done with his daughter and how he would have taken care of her.
[23] Mr. Brodsky in no way minimizes the seriousness of the charges for which Mr. Rodrigues has been convicted, but in dealing with the jurisprudence notes that none of the cases referenced either by him or by the Crown dealt with individuals who suffered from a disease of the mind. Because of the therapeutic relationship that Mr. Rodrigues has now clearly established with Dr. Vasdev, Mr. Brodsky argues that to incarcerate Mr. Rodrigues will only set him back in the treatment that he has received to date.
[24] Finally, in his submissions Mr. Brodsky argues that because Mr. Rodrigues is a first offender, this court should impose the shortest possible sentence.
Principles of Sentencing
[25] The principles of sentencing are well known and are set out in s. 718 of the Criminal Code. The principles of denunciation and deterrence are clearly at loggerheads in this case with the principle of rehabilitation.
[26] I am also required to take into account the principles set forth in s. 718.2 of the Criminal Code, and to take into account any relevant, aggravating or mitigating circumstances relating to the offences. In this regard, s. 718.2(iii) is of some relevance in that Mr. Rodrigues was in a position of trust to his daughter. I am also required under s. 718.2(b) to impose a sentence that is similar to sentences imposed on similar offenders, for similar offences committed in similar circumstances.
Aggravating and Mitigating Factors
[27] There was no guilty plea that this court could consider in mitigation, and there has been no overt expression of remorse on the part of Mr. Rodrigues. I do, however, take into account that Mr. Rodrigues did not contest the substantive charges, and that the only issue that this court had to determine was whether or not he was NCR at the time of the commission of the offences. I also take into account in mitigation, the fact that at the time of the commission of the offences Mr. Rodrigues was suffering from a mental disorder, albeit not one that rose to the level of an NCR defense.
[28] The most obvious and significant aggravating factor in this case is the fact that Mr. Rodrigues abused his position of trust as the father of J.C., when he abducted her in the early morning hours from her bed and took her on a wild car ride from Aurora to Pembroke, driving at extreme rates of speed that could have translated into a much more tragic outcome. I accept the submissions made on behalf of Mr. Rodrigues that his actions were impulsive, but nonetheless they were actions that could have resulted in much more severe injuries or even death. His actions also jeopardized the safety of police officers that were in pursuit of Mr. Rodrigues, as well as the safety of anyone else on the road when Mr. Rodrigues was travelling as fast as 170 kilometers per hour in an 80 kilometer an hour zone.
Analysis
[29] The maximum sentence that this court can impose for child abduction pursuant to s. 283 of the Criminal Code is 10 years. A review of the case law from across the country would suggest that the courts, without directly saying as much, have divided child abduction cases into three categories. The first category I describe as the “impulsive abduction”, where the accused abducts his or her child and the child is returned within a relatively brief period of time. These types of abductions usually end after an Amber Alert, as was the case before me. The sentence imposed in this type of case has resulted in a suspended sentence – see R. v. Lewin, 2018 ONCA 882; an 18 month conditional sentence – see R. v. Baksh, as well as a period of incarceration that has ranged between three months and two years less a day – see R. v. Pasdari, 2003 ONCA 319; R. v. Singh, 1990 BCCA 2409; R. v. McBeath, 2014 BCCA 305.
[30] The second type of case I describe as “the retribution abduction”. This type of abduction often occurs where there has been an acrimonious family law/custody fight and the accused seeks to inflict the greatest harm on the other spouse, by abducting the child and taking the child outside the jurisdiction of the court to a country where Canada has no ability to enforce its laws.
[31] The recent decision of Molloy J. in R. v. C.M.L., 2016 ONSC 4406, is just one example where the court has reflected a much higher sentence when one parent removes a child from Canada, with no intention of ever complying with a Canadian court order requiring that the child be returned to the lawful custodial parent. The Court of Appeal in R. v. Li, 2017 ONCA 509, upheld the decision of Molloy J. In upholding the sentence of seven years Trotter J.A. noted at para. 41 that the crime was ongoing, and that the father had been completely deprived of the right to parent his child and, as such, had been completely excluded from the child’s life. In imposing the sentence that she did, Molloy J. took into account that the mother had no criminal record, and but for this mitigating fact would have considered the maximum sentence of 10 years would have been appropriate.
[32] The third type of child abduction is one that might be described as “the hospital abduction”. This type of abduction is characterized by an accused posing as a member of the hospital staff, who then abducts a newborn from the maternity ward. While Lesage J. in R. v. Hill, imposed a sentence of seven years in this type of abduction, the Court of Appeal in R. v. Batisse, 2009 ONCA 114, recognizing the mental health issues of the accused imposed a sentence of 2.5 years for this type of abduction. While not a hospital abduction the accused in R. v. Nguyen, 2008 ONCJ 367, stole a car that had a baby inside. The accused plead guilty to child abduction and dangerous driving, and received a sentence of three years.
[33] Regardless of the type of abduction or the motivation for the abduction, there can be no doubt that the abduction of a child will have an untold impact on both the child and the custodial parent, as well as the community at large. Often child abductions are accompanied by an Amber Alert, and the dedication of significant police resources and high-speed chases that imperil the accused, the child, the police and other users of the road. For these reasons, the courts have always emphasized that denunciation and general deterrence must be stressed in imposing a sentence for someone convicted of child abduction.
[34] While the principles of denunciation and deterrence have quite rightly been the principle of sentencing that has been stressed for the most part in child abduction cases, the Court of Appeal in Batisse substituted a sentence of 2.5 years for the trial judge’s sentence of 5 years, where the accused had pleaded guilty to abducting a child from a local hospital. In doing so Gillese J.A., at para. 37, noted that the trial judge had perceived the need to give predominance to the principle of general deterrence and denunciation without “an express consideration of the effect of the sentence on the appellant’s rehabilitation”. Moreover, at para. 38 Gillese J.A. noted:
…here the appellant’s mental health problems played a central role in the commission of the offence. In such circumstances, deterrence and punishment assume less importance.
[35] I have already determined in the context of the determination of whether Mr. Rodrigues was NCR, that he was suffering from a mental disorder at the time he committed the offences. Having reviewed the evidence of both experts, I am more than satisfied that Mr. Rodrigues’ mental condition at the time he abducted his daughter played a significant role in his commission of this offence. While he knew that what he did was morally wrong, there is nothing in the evidence to suggest that he had, in any way, planned to do what he did. In R. v. Ellis, 2013 ONCA 739, Strathy J.A. (as he then was) stated at para. 117:
There is no doubt that an offender’s mental illness is a factor to be taken into account in sentencing. Where mental illness plays a role in the commission of the offence, the offender’s culpability may be diminished, punishment and deterrence may be ineffective or unnecessary and treatment and rehabilitation of the offender may be paramount considerations.
[36] The Court of Appeal in Batisse, at para. 38, stresses that where an accused commits an offence while suffering from a mental disorder:
…[T]he primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated. This is especially so where a lengthy prison term may be regarded as counterproductive.
In the case of Mr. Rodrigues, he has continued with treatment while he was released on bail and subsequently while he has been under house arrest. Mr. Rodrigues now appears to have accepted that he has a mental disorder that requires ongoing treatment. To interrupt that ongoing treatment with further incarceration would be counterproductive.
[37] Mr. Rodrigues to date has spent 10 months and 15 days in custody awaiting his trial, which with credit at 1.5 for each day served gives him credit for 302 days. He has also been on house arrest for 618 days. I accept that the terms of his house arrest have been significant and would give him credit for an additional 154 days, which gives Mr. Rodrigues credit for 456 days of pre-trial custody or approximately 15 months. Even if Mr. Rodrigues had not been suffering from a mental disorder when he abducted his daughter, a sentence of 15 months would have been, in my view, at the low end of the range of an acceptable sentence this court could have imposed.
[38] The Court of Appeal has made it clear to sentencing judges, that where an accused’s mental disorder has played a role in the commission of the offences for which the offender is to be sentenced, the primary concern of the court must shift from deterrence to rehabilitation. It is for this reason and this reason alone that I accept on the somewhat unique facts of this case, that the appropriate disposition of the court is not to impose any further term of imprisonment on Mr. Rodrigues. I do intend to impose terms of probation that will allow the court to still have significant control over Mr. Rodrigues. As such, the sentence of this court is one of time served plus one day, and the terms of probation which are set forth below and which I am prepared to hear further submissions from counsel.
[39] The term of probation shall be for a period of three years, which is the maximum allowed for under the Criminal Code s. 732.2(2)(b). The terms shall include the statutory terms set forth in s. 732.1(2) of the Criminal Code, as well as the following additional terms:
a) Mr. Rodrigues shall have no contact with his daughter, unless such contact is authorized by a Family Court order issued by a judge of this court.
b) Mr. Rodrigues shall not initiate contact with Juliet Dela Cruz unless it is in the presence of legal counsel, or it is for the purposes of attending Family Court proceedings. Contact means any contact, and includes but is not limited to direct contact; telephone contact; Internet contact; any form of social media including Facebook, Instagram and any other source of social media. Ms. Cruz may vary this part of the probation upon written request if she so desires.
c) Mr. Rodrigues shall continue with the treatment (which includes the medication prescribed by Dr. Vasdev) that he is presently undergoing with Dr. Vasdev, for so long as Dr. Vasdev deems such treatment is medically in his best interest.
d) Mr. Rodrigues shall not consume any non-prescriptive medication, and he shall abstain from the consumption of alcohol during the period of this probation order.
e) Mr. Rodrigues shall reside at his present address and shall notify his probation officer at least 30 days in advance of any intended move, which move must be authorized by his probation officer (consent not to be unreasonably withheld).
[40] In addition to the aforesaid terms of probation, there shall be a two year driving prohibition.
Justice M.L. Edwards Released: June 19, 2019
NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.