Her Majesty the Queen v. Flordeliza Espina
Court File No.: CR-20-30000023-00AP Date: 2020-10-21 Ontario Superior Court of Justice
Between: Her Majesty the Queen (Respondent)
- and - Flordeliza Espina (Applicant)
Counsel: M. Gries, for the Respondent Crown D. Reeve, for the Applicant
Heard: October 9, 2020
Before: Croll J.
Reasons for Judgment
[1] This appeal was heard by videoconference with the consent of the parties. Crown counsel, defence counsel and I participated remotely. Flordeliza Espina (the Appellant) was in the office with defence counsel.
Introduction
[2] On October 2, 2019, the Appellant pleaded guilty to one count of assault with a weapon, a broomstick, before Justice Hackett of the Ontario Court of Justice. The victim was the Appellant’s nine-year-old son.
[3] At the sentencing hearing held on February 26, 2020, the Crown and defence jointly proposed that the Appellant be granted an absolute discharge, together with the imposition of a 12-month common law peace bond. The terms of the proposed peace bond allowed for contact between the Appellant and her son to be severed by a child protection agency should there be any further complaint.
[4] The sentencing judge did not accept the joint submission and imposed a suspended sentence and 18 months of probation.
[5] The Appellant appeals the conviction and the sentence and submits the following:
a. The sentencing judge failed to clearly notify the parties that she would not accede to the joint position and deprived the Appellant of the opportunity to make additional submissions or to seek to withdraw her plea; and
b. The sentencing judge failed to apply the proper test in refusing to accede to the joint submission. In the result, the sentencing judge’s determination is not owed deference on appeal and this Court should evaluate the joint position using the correct test.
[6] The Appellant asks this Court to allow the appeal and set aside the conviction. In the alternative, the Appellant seeks an order allowing the sentence appeal and reducing the sentence to an absolute discharge.
Background Facts
[7] Between January 1, 2019 and June 5, 2019, the Appellant’s son was having some difficulty practicing his Bible readings for Sunday Mass. On one occasion, the Appellant apparently became frustrated with her son, and grabbed a belt, wrapped the buckle around her hand and whipped her son on the upper shins approximately six times. Her son described the strikes as feeling like a “lightning strike” on his bare skin. He reported redness to the area, but no injuries were visible at the time this assault was ultimately reported.
[8] A second incident occurred on June 5, 2019. The Appellant learned that her son had lied to a teacher and had been bringing a cell phone to school in violation of the school rules. The Appellant struck her son with a broomstick on the buttocks between two and 10 times. The Appellant then hit her son on the palms of his hands approximately seven times. These blows caused her son to cry out, saying “Oww” multiple times. Throughout this, the Appellant repeatedly yelled at him, saying “don’t lie to me”. The son later described his hands as “feeling hot like I was in an oven”. The Appellant’s son suffered significant bruising on both his buttocks. Photographs of the bruising were taken by his father one or two days later.
[9] The Appellant was charged with two counts of assault with a weapon, contrary to s. 267(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”).
[10] On October 2, 2019, the Appellant pleaded guilty to one count of assault with a weapon relating to the June 5, 2019 incident. The facts relating to the other incident and the previous harm were read in as aggravating factors in accordance with R. v. Garcia and Silva (1970), 1969 CanLII 450 (ON CA), 1 O.R. 821 (“Garcia and Silva”). No joint submission was presented to the Court at that time; however, both defence and the Crown indicated they would be seeking a discharge on sentence.
[11] Following the plea, the Appellant’s release was varied to allow her to have contact with her son under the supervision of Native Family Services and with the consent of her son and his father. The sentencing hearing was adjourned to December 20, 2019 to allow the Appellant to complete additional parental counselling.
[12] On December 20, 2019, the defence requested, and was granted, an adjournment of the sentencing hearing to allow the Appellant to continue with private up-front counselling. The Court was advised that the defence and the Crown were both agreeable to the granting of an absolute discharge, subject to the Appellant’s continued rehabilitative efforts and the ultimate results of counselling. The sentencing hearing was adjourned until February 26, 2020.
[13] On December 20, 2019, the sentencing judge expressed certain concerns:
a. The sentencing judge noted that there was no indication in the letter from the therapist whom the Appellant had been seeing that the therapist had a full appreciation of the extent of the assault on the Appellant’s son;
b. The sentencing judge wanted to see a resumé to determine the therapist’s expertise in addressing the relevant issues;
c. The sentencing judge was concerned about the sentencing range, given the injuries, the age of the child and the circumstances, and asked for case law to establish that an absolute discharge was appropriate in these circumstances;
d. The sentencing judge sought confirmation that the previous incidents were being read in as aggravating facts pursuant to Garcia and Silva;
e. The sentencing judge expressed some concern about the parenting counselling completed in July 2019, in that only a small component of the course appeared to focus on appropriate discipline; and
f. The sentencing judge wanted confirmation that the authors of letters of support filed with the Court had received the synopses of the allegations and photographs of the injuries and were not commenting on the Appellant’s behaviour more generally.
[14] On February 26, 2020, the sentencing hearing proceeded on the basis that the parties were jointly proposing an absolute discharge on sentence, coupled with the imposition of a 12-month common law peace bond. The terms of the proposed peace bond allowed contact between the Appellant and her son to be severed by a child protection agency should there be any further complaint.
[15] At that time, the Appellant advised the Court that three additional counselling sessions had been completed. As well, it was clarified on the record that the therapist, as well as the authors of support letters, had been apprised of the charges and provided with the synopses and photographs relating to the offence. Three cases were filed to support the joint submission on sentence.
[16] The sentencing judge expressed concern with those of the support letters which qualified the abuse as isolated incidents, the characterization of the abuse as excessive “discipline” and the appropriateness of the sentence proposed in light of the nature of the injuries to the child and the circumstances of the offence.
[17] Ultimately, the sentencing judge declined to impose the joint submission and instead imposed a suspended sentence and 18 months of probation.
Joint Submissions
[18] The importance of joint submissions is well established. In R. v. Anthony-Cook, 2016 SCC 43 (“Anthony-Cook”), Moldaver J. stated the following at para. 25: “It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large.” See also R. v. Fuller, 2020 ONCA 115.
[19] The courts have emphasized that a high degree of confidence that joint submissions will be accepted is of crucial importance to the effective and efficient operation of the criminal justice system and should only be rejected in exceptional circumstances: see Anthony-Cook at para. 10; Fuller at paras. 16-17.
[20] In Anthony-Cook, the Supreme Court held that a joint submission should not be judged on a “fitness of sentence” or “demonstrably unfit” standard. Rather, the Court determined that a stringent “public interest” test is required where a sentencing judge is considering departing from a joint submission. After referring to two decisions of the Newfoundland and Labrador Court of Appeal, R. v. Druken, 2006 NLCA 67 and R. v. B.O.2, 2010 NLCA 19, Moldaver J. stated as follows at para 34:
In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. They emphasize that a joint submission should not be rejected lightly, a conclusion with which I agree. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold….
[21] In Anthony-Cook, at para. 5, the Supreme Court found that the lower courts had incorrectly applied a “fitness of sentence” test, and not the public interest test. It stated that the test that should have been applied is whether the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.
Did the Sentencing Judge Apply the Public Interest Test?
[22] The Crown submits that the sentencing judge applied the public interest test. It notes that the sentencing judge reviewed the mitigating and aggravating circumstances, the range of sentence for this type of offence and the applicable sentencing principles, and that the sentencing judge recognized the importance and significance of joint positions.
[23] In particular, the sentencing judge stated as follows:
However, looking at all of the principles of sentencing and reflecting upon their relationship to section 15 of the Charter and the need for this court to emphasize deterrence and denunciation as the most important objectives in sentencing in a case of repeated child abuse with the injuries this child experienced and the impact on him he described, and taking everything into account, I cannot find that a discharge is appropriate. It would obviously be in Ms. Espina’s interest, but I find it is contrary to the public’s interests.
[24] It is accepted that a sentencing judge need not cite the words specific to the public interest test. However, in my view, this case can be distinguished from R. v. R.S., 2019 ONCA 542, relied upon by the Crown. In that case, the sentencing judge rejected a joint submission calling for a determinate sentence followed by a long-term supervision order. Upon appeal, the Court of Appeal noted as follows, at para. 8:
In our view, the detailed reasons of the sentencing judge demonstrate that he concluded that a determinate sentence would be “contrary to the public interest” and would bring “the administration of justice into disrepute”. While the sentencing judge did not use those specific words, he did refer to the “the overriding consideration of protection of the public in a dangerous offender application”. He concluded that the evidence failed to show that the appellant’s risk could be managed in the community and that if released, the appellant posed a danger to children.
[25] This case can also be distinguished from that of R. v. Augustine, 2019 ONCA 119 (“Augustine”). In that case, the sentencing judge gave two reasons why he rejected the joint submission. He stated specifically that a non-custodial sentence would bring the administration of justice into disrepute ‘‘given the damage [Mr. Augustine] caused”. Later in his reasons, the sentencing judge stated: “I have to impose a sanction that I think is appropriate and bearing in mind the damage and the injuries to others, I do not think a suspended sentence, even given your youth and your contrition, is an adequate remedy given the other factors and principles of sentencing.”: as quoted in Augustine at para 8.
[26] In this case, upon reading the sentencing judge’s reasons as a whole, there was no examination of how acceding to the joint submission would bring the administration of justice into disrepute and would cause a reasonable and informed person to feel that the administration of justice had broken down. In my view, the sentencing judge did not apply the correct public interest test. Rather, the sentencing judge erroneously applied the fitness test. The sentencing judge considered the joint submission, but departed from it, because, having regard to the circumstances and relevant sentencing principles, she concluded that the sentence proposed was not fit. As stated in Anthony-Cook, at para. 31, the public interest test is “distinct from the ‘fitness’ tests used by trial judges and appellate courts in conventional sentencing hearings and, in that sense, helps to keep trial judges focused on the unique considerations that apply when assessing the acceptability of a joint submission.”
[27] Given that the sentencing judge erred in principle by not applying the stringent public interest test, deference is not owed: Anthony-Cook, at para 6. The matter is to be looked at afresh to determine whether the joint submission should have been accepted.
The Joint Submission
[28] This case presents several aggravating factors. The Appellant’s conduct was serious. The victim was her young son. The Appellant used a broom to hit him repeatedly. This was not the first time that the Appellant had disciplined her son in a violent manner. The Appellant’s conduct breached the trust between a parent and child, violating the child’s sense of security. The injuries were serious enough to be visible in photographs taken a day or two after the incident.
[29] There are, as well, mitigating factors to be considered. The Appellant has no prior criminal record. She pleaded guilty very early on in the proceedings and has expressed remorse for her actions. The Appellant has taken positive rehabilitative steps. She initially took four sessions of general parental counselling provided by her employment benefits. The Appellant then arranged for and attended six counselling sessions with a private therapist, focusing on the discipline issues. These sessions were paid for by the Appellant personally. The Appellant is gainfully employed.
[30] The private therapist opined that the Appellant “seems to have a good understanding of how to prevent future harm and be protective of her child moving forward” and that “she has gained new parenting strategies”: Evidence: Letter of Joanna Seidel, “Updated Individual Therapy Report” (23 February 2020).
[31] Among the three character letters filed in support of the Appellant, was one from Peter Krishna, an elder at the Guildwood Congregation of Jehovah’s Witnesses. Mr. Krishna noted that the Appellant came to him for spiritual advice and that while this incident has caused much damage, the Appellant’s plan is to learn from it, and to adjust her thinking and habits to match her beliefs.
[32] The sentencing judge herself recognized that the Appellant has made important strides and progress with respect to her problems and is on the way to rehabilitation and to change.
[33] It is also noted that the Appellant has family in the United States, and a conviction would impact her ability to travel to see them. While submissions were made that a conviction would also negatively impact the Appellant’s employment as a law clerk, there is no evidence to support this submission.
[34] While sentencing is always a case specific exercise, the case law filed indicates that a discharge, whether absolute or conditional, is within the range of sentences when considering similar offences.
[35] In R. v. P.R., 2019 ONCJ 535, the Court granted an absolute discharge on a joint submission to an offender who repeatedly disciplined his child by striking him with a belt on the torso, arms, and hands. The offender pleaded guilty and had made a conscious decision to discontinue the practice before the criminal investigation began.
[36] In R. v. F.B., 2018 ONCJ 235, the Court granted a conditional discharge to an offender who disciplined his son with a USB charger for not eating his toast and struck him at least five times. In this case, photographs filed showed several welts across the child’s back chest and arms, as well as a laceration where the charger broke the skin. The offender had completed a significant amount of post-charge rehabilitation which the Court characterized at para. 44 as “exemplary”. Though not considered in the weighing of aggravating and mitigating factors, it was also noted that the offender was a foreign national and a conviction would have had serious immigration consequences for him.
[37] In R. v. Olatona, 2015 ABPC 222, the Court granted an absolute discharge to an offender who had struck his son with a computer electrical cord while disciplining him for not looking after his brother. It was clear that the offender had regularly resorted to physical discipline on all three of his children from infancy. The offender pleaded guilty and had taken significant rehabilitative steps, including family and individual therapy.
[38] In R. v. P.(V.), 2014 ONCJ 430, the offender struck her child in the nose, drawing blood, while the offender was drinking alcohol. The offender had pleaded guilty on the second day of trial and completed substance abuse counselling. The offender had a prior finding of guilt for assaulting her mother. There was a joint submission where the Crown and defence both proposed a discharge, although the Crown sought a conditional discharge and the defence position sought an absolute discharge. The Court recognized the significance of joint submissions. It imposed a conditional discharge but noted as follows at para. 7: “But for the joint submission, I would have thought that denunciation and deterrence require a finding of guilt for a second offence of violence in a domestic context, particularly where the offence was in relation to a child.”
[39] In R. v. D.W., 2014 BCPC 36, the Court granted a conditional discharge to an offender who struck his daughter on the head with an open palm and on her clothed buttocks with a belt, leaving bruises on her lower back. Mitigating factors included a guilty plea at an early stage, a lack of criminal record, remorse and significant post-charge rehabilitative efforts.
[40] Denunciation and deterrence are the dominant sentencing principles in this case. Rehabilitation must also be considered. I am satisfied that the separation of the Appellant from her son since this incident will serve as a specific deterrent to prevent the Appellant from repeating this type of conduct. The peace bond component of the joint position will provide for further specific deterrence and will offer an additional safeguard for the protection of the Appellant’s son. The exposure of this offence to the Appellant’s community and church will afford general deterrence to the greater community. It also reflects a public denunciation of the Appellant’s conduct. The Appellant has taken important counselling steps, is gainfully employed and has strong rehabilitative prospects.
[41] The joint submission is within the range of appropriate sentences. The Appellant has pleaded guilty, recognized her problem and taken steps to address it. An absolute discharge is in the best interests of the Appellant and not contrary to the public interest as set out in s. 730(1) of the Code. In all of the circumstances, it cannot be said that the joint submission is contrary to the public interest or would bring the administration of justice into disrepute. A reasonable person, informed of all the circumstances of this case, including the importance of promoting certainty in resolution discussions, would not view this sentence as a breakdown in the proper functioning of the legal system.
[42] As I have found that the sentencing judge failed to apply the public interest test in refusing to accede to the joint position, leading to a fresh consideration of the matter, it is not necessary to consider the conviction appeal.
Disposition
[43] The appeal is allowed. The sentence is reduced to an absolute discharge, together with the imposition of a 12-month common law peace bond with terms allowing contact between the Appellant and her son to be severed by a child protection agency should there be any further complaint.
[44] I wish to thank both counsel for their complete material and thorough submissions.
Croll J.
Released: October 21, 2020