Court File and Parties
COURT FILE NO.: CR-17-452
DATE: 2021-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
FRANK O’DEA
Counsel:
M. Morris, for the Crown
L. Kurt Wildman, for Mr. O’Dea
HEARD: September 17, 2021
REASONS FOR SENTENCE
BALTMAN J.
Introduction
[1] Victoria O’Dea died of starvation while in the sole care of her father, Mr. Frank O’Dea. At the time of her death, she was 21 months old and weighed 7.3 kilograms (16 pounds). She was utterly emaciated, with protruding bones and sunken eyes. Mr. O’Dea stopped feeding and hydrating her weeks before her death, causing her to suffer a slow and agonizing decline.
[2] On July 29, 2021, following a 21-day trial, I convicted Mr. O’Dea of manslaughter and criminal negligence causing death by failing to provide the necessities of life: R. v. O’Dea, 2021 ONSC 5217 https://canlii.ca/t/jh97s. It is agreed that based on the principles in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, I am ordering a stay on the offence of criminal negligence causing death and proceeding with sentencing solely on the offence of manslaughter.
[3] After I delivered my judgment, counsel and I agreed on the date of September 17, 2021, for oral submissions on sentence. It was further agreed that in advance of that date, counsel would provide written submissions and obtain a pre-sentence report (PSR). I subsequently received detailed written submissions from both counsel, along with a partial PSR and a Victim Impact Statement from Victoria’s mother, Ms. Hiliary Ashley. The PSR was incomplete because, while Mr. O’Dea cooperated with the initial interview on August 12, 2021, he cancelled the follow-up interview and there has been no communication from him since. Because Mr. O’Dea failed to sign in with his probation officer, as required by the terms of his release, a first-instance warrant was issued for his arrest on September 6, 2021.
[4] On September 14, 2021, the Crown attorney (Mr. Morris) served and filed an application to continue with the sentencing in the absence of the offender. The supporting materials demonstrated that efforts to locate Mr. O’Dea by the probation office and Peel police had been unsuccessful. As it appeared the offender had absconded, the Crown asserted in its application that the sentencing should continue in his absence.
[5] Mr. O’Dea failed to appear at the hearing on September 17, 2021. His counsel, Mr. Wildman, advised that he had lost contact with Mr. O’Dea and did not know why he was absent. Mr. Wildman then brought two oral applications. First, he sought to have the sentencing hearing adjourned, arguing that he needed instructions from Mr. O’Dea regarding what submissions should be made on sentence. After I denied that application, Mr. Wildman then applied to be removed as counsel, asserting he could not continue as counsel given that Mr. O’Dea had ceased to communicate with him. I refused that application as well. My reasons for both decisions overlap considerably and can be summarized as follows:
Section 475(1)(b)(i) of the Criminal Code, R.S.C. 1985, c. C-46, stipulates that where an accused “absconds” during the course of his trial, the court may “impose a sentence on him in his absence.” Based on the evidence contained within the Crown’s application, it is clear that Mr. O’Dea has voluntarily absented himself and I therefore find that he has absconded;
Both Crown and Defence had already made meaningful written submissions, and each included a specific range for sentence. The Crown stated it was seeking 20 years imprisonment, and gave lengthy reasons in support; Mr. Wildman, in his detailed, written response of August 26, 2021, asserted that the correct range was 10 to 16 years. Implicit within Mr. Wildman’s submission is an understanding that he received meaningful instructions on sentence from Mr. O’Dea;
In addition to the written arguments supplied by counsel, there was substantial information already before the court for the sentencing, including a partial PSR, a Victim Impact Statement, and extensive case law filed by counsel;
Mr. Wildman is an experienced counsel. He was retained long before the trial began and is clearly familiar with the offender’s unique circumstances, along with the sentencing considerations relevant to this particular offender and this particular offence;
When the Crown gave advance notice that it was seeking to proceed with sentencing submissions despite Mr. O’Dea’s absence, it also supplied case law where judges proceeded with sentencing despite an offender having absconded: R. v. P.M., 2020 ONSC 3325, at para. 13; R. v. Montague, 2021 ONSC 2966, at para. 3; R. v. Maxwell, 2013 ONSC 5088, at paras. 5-7.
In sum, given the express provisions of the Criminal Code, the presence of informed counsel, and having ample material to determine a fit sentence, I decided to proceed with the sentencing hearing in Mr. O’Dea’s absence. Immediately after ruling to proceed, I invited Crown and Defence counsel to supplement their written materials with oral submissions, and both did so. In consultation with counsel, I then scheduled the sentencing judgment for October 1, 2021, and issued a bench warrant for Mr. O’Dea’s arrest. He has not yet been located.
Circumstances of the Offence
Background
[6] Victoria’s parents are Mr. O’Dea and Hiliary Ashley. They began a relationship in 2011 and were living together on July 2, 2013, when Victoria was born. Victoria weighed eight pounds at birth and was a healthy baby.
[7] However, the parents’ relationship was turbulent, and they separated within months of Victoria’s birth. The triggering event was a physical altercation between them that resulted in an assault charge against Ms. Ashley. The charge was ultimately resolved by a peace bond, which included conditions limiting Ms. Ashley’s contact with Victoria. From November 17, 2013 onward, Victoria remained in Mr. O’Dea’s exclusive care, with Ms. Ashley initially permitted only supervised visits.
[8] Ms. Ashley eventually obtained a court order permitting unsupervised visits with Victoria. The first such visit was scheduled to take place on February 26, 2015 (approximately seven weeks before Victoria’s death) but did not proceed because, after Mr. O’Dea arrived at the designated transfer location, he refused to hand Victoria over to Ms. Ashley. The couple was scheduled to reattend family court on April 21, 2015 – the day Victoria was pronounced dead – to address Ms. Ashley’s request for overnight visits with Victoria. At that point, Victoria was 21 months and 18 days old.
[9] At the time of Victoria’s death, Mr. O’Dea was 42 years old, unemployed, and on social assistance. He and Victoria lived in the rented basement apartment of a house in Brampton. It is undisputed that in the months leading up to Victoria’s death, Mr. O’Dea was the sole custodian and caregiver for Victoria. She was at his complete mercy.
[10] It is also undisputed that until early March 2015 (six weeks before her death), Mr. O’Dea properly cared for Victoria. Friends who visited the apartment observed that it was clean and well-kept, and that Victoria looked healthy and well fed. Mr. O’Dea also brought Victoria to see Dr. Frederick Lui, a family physician, on a regular basis. Throughout these visits, Dr. Lui noted that Victoria met her developmental milestones and maintained between the 25th and 50th percentile on the growth chart. Dr. Lui last saw Victoria six weeks before her death, on March 4, 2015, for a minor eye ailment. She was a healthy baby who, up to that point, was properly nourished.
[11] At some point after the visit on March 4, 2015, Victoria plunged downhill. At the time of her death she weighed 7.3 kilograms (16 pounds), equivalent to what she weighed when she was 7.5 months old. This placed her below the 2nd percentile on the growth chart, in glaring contrast to the 25th to 50th percentile level she previously maintained throughout her life.
Events surrounding Victoria’s death
[12] Shortly before midnight on April 20, 2015, Mr. O’Dea called 911 to report that Victoria had stopped breathing. When the paramedics arrived, she had no vital signs and appeared lifeless. They described her as “gray, gaunt, and sunken.” Seanan Donovan, the advanced care paramedic in attendance, stated Victoria was “just withered, her joints all were very wasted or atrophied and her eyes were sunken in.” He also noticed severe ulcers on Victoria’s inner thighs, which he concluded were related to acute diaper rash.
[13] Victoria was so dehydrated that the paramedics were unable to insert fluids and medication intravenously (i.e., through a vein). Instead the necessary infusions were intraosseous (i.e., directly into her bone marrow). Mr. Donovan noted that instead of the usual “pop” sensation that accompanies insertion into the hard surface of a bone, here the intraosseous needle “just slid in,” a further sign of emaciation and malnourishment. Mr. Donovan observed that he has never experienced that type of “soft entry” into a bone any other time in his 14 years as a paramedic.
[14] Shortly after her arrival at hospital Victoria was pronounced dead. Cause of death was listed as “severe malnutrition and dehydration” due to “homicide.” The attending coroner, Dr. H. Kassam, who had seen hundreds of children over his career, testified he had “never seen this degree of emaciation and dehydration.”
The medical evidence at trial
a) Dr. Kassam
[15] Based on his investigation and analysis, Dr. Kassam concluded that Victoria starved to death, most likely over a period of three to four weeks. Her decline would have been obvious to any normal adult with any common sense. In the days leading up to her death she would have been extremely weak, possibly semi-comatose. Medical intervention could have saved her.
b) Dr. Michael Pickup
[16] Dr. Pickup is the forensic pathologist who conducted the autopsy of Victoria. Based on the autopsy results, he eliminated every possible cause of weight loss in children and was left with “only one possibility,” namely that Victoria had died from the “combined effects” of dehydration and malnutrition.
[17] As for the timeframe within which Victoria’s decline occurred, Dr. Pickup gave a range of “weeks to months.” In the days and hours leading up to her death, it would have been obvious to anyone that she was failing.
Circumstances of the Offender
[18] Mr. O’Dea did not testify at trial, nor, as noted above, did he appear at the sentencing hearing. The bulk of the biographical information provided to the court about Mr. O’Dea comes from the PSR.
[19] Mr. O’Dea is now 49 years old. He is estranged from his immediate family, but has an aunt who has known him from childhood and who describes him as a caring and generous person.
[20] Mr. O’Dea also has a daughter from a previous relationship, who is now 25 years old and lives with her mother. This daughter had no real involvement with Victoria and has not had a relationship with Mr. O’Dea for several years. She recalls that Mr. O’Dea was an adequate parent to her in her younger years.
[21] Mr. O’Dea completed Grade 12 at the age of 17 but did not pursue any post-secondary studies. Over the subsequent years he worked at a variety of jobs, including busboy, restaurant cook, construction, and kitchen renovations. He was then self-employed as a video games wholesaler for several years. He quit that job to be a stay-at-home father to Victoria because, according to the PSR, “he did not trust anyone else to care for his daughter.”
[22] At the time of the offence he was on social assistance. After the offence, between 2015 and 2017, he worked as a sous-chef at two different restaurants. Since, he has not obtained employment. He currently relies on the generosity of relatives and Ontario Work Benefits to support himself.
[23] Although in recent years he has suffered from depression and anxiety, and was on medication for those conditions, he is currently not receiving any counselling or taking any medication for his mental health.
Victim Impact Statement of Hiliary Ashley
[24] As noted above, Ms. Ashley is Victoria’s mother. She provided a detailed, written statement for the sentencing hearing. When Ms. Ashley learned of Victoria’s death, her “world fell apart.” She was utterly devastated. In addition to the immense pain of losing her only child, she had to deal with investigating police, feuding lawyers, and intrusive media attention. To this day she remains stunned and horrified that Mr. O’Dea caused their daughter’s death after having fought so hard to have custody of her. She cannot fathom how he committed such an act. Since Victoria’s death she has, as she puts it, “struggled intensely with the lack of answers to my existential and emotional questions.”
[25] The effects upon Ms. Ashley continued long after Victoria’s death. She was not able to work for eight months. Her personal relationships suffered. Ongoing calls from the media and updates regarding the criminal trial were “intensely destabilizing.” She was diagnosed with anxiety, suffered from nightmares, and could not be around any friends who had children as it would send her into “a tailspin of despair.”
[26] Even today, six and a half years after Victoria’s death and having received significant therapy, “true understanding and peace do not seem possible.” She feels she has nothing to live for and remains haunted that Victoria underwent a slow, horrible, and utterly preventable death.
Mitigating and Aggravating Factors
[27] The sole mitigating feature is that Mr. O’Dea has no prior criminal record.
[28] In his written submissions, Defence counsel suggests there is some significant delay in this case that should be considered. He relies on the principle that delay in trial proceedings, even when within constitutional norms, can have a mitigating effect on sentence: R. v. Bosley (1992), 1992 CanLII 2838 (ON CA), 18 C.R. (4th) 347 (Ont. C.A.), at para. 43; R. v. T.M.B., 2013 ONSC 4019, at para. 74.
[29] There is no merit whatsoever to this argument. This matter initially came to the Superior Court in June 2017. Since then the trial has been scheduled and adjourned on four separate occasions. The first two trial dates (June 2018 and September 2019) were vacated at the behest of the Defence (Mr. Wildman was not then counsel of record). The third trial date (May 19, 2020) was adjourned due to COVID-19. The fourth trial date (February 1, 2021) was again adjourned at the request of Defence. Both Crown and Defence then agreed to the new (fifth) trial date of May 17, 2021. When that date finally arrived, Defence again sought an adjournment, with virtually no notice, which I denied. Defence followed that up with yet another adjournment request, which I also denied: R. v. O’Dea: 2021 ONSC 3706, at paras. 1-6 and 27-34.
[30] On the last two occasions when the Defence sought an adjournment, it expressly offered to waive s. 11(b) of the Charter of Rights and Freedoms, and gave no indication that it would rely on delay for its own advantage.
[31] On top of all that, the offender has now absconded. If I had acceded to his counsel’s request for an adjournment on that basis, it would have caused further delay.
[32] In sum, the Crown and the court have been ready to proceed to trial for years. Virtually all the delay lies at Mr. O’Dea’s feet. I easily reject this argument.
[33] Defence counsel also suggests it is a mitigating factor that the evidence shows the offender was a good parent to Victoria until the last few months of her life. I disagree. As the Ontario Court of Appeal observed at para. 16 of R. v. D.D., 2018 ONCA 134, where there is prolonged, severe abuse of a child by the offender, “the suggestion that the [offender] was otherwise a good parent, is without any substance.” When abuse is this horrific, other mitigating factors play “little practical role” in the sentencing process.
[34] I therefore find the sole mitigating feature to be that Mr. O’Dea is a first offender.
[35] There are, however, numerous aggravating features present here:
First and foremost, the extreme vulnerability of Victoria because of her age and the fact that Mr. O’Dea, as her father and sole caregiver, was in a position of trust and authority over her.
Next, the prolonged physical suffering that Victoria endured over the weeks leading up to her death. Once her nourishment was removed, she must have been in agony from hunger and thirst. This torture was prolonged over many weeks, and her physical decline would have been obvious to Mr. O’Dea.
Beyond her physical suffering, the likelihood that Victoria would have been emotionally overwhelmed, unable to comprehend why this cruelty was being inflicted upon her.
Lastly, the fact that this was not an impulsive act, such as a parent lashing out in frustration at a child or a temporary lapse in judgment. Mr. O’Dea had many hours and days to reconsider his behaviour, but failed to do so. He never took Victoria to a doctor, even when it was obvious she was wasting away and there was still time to save her. It is undisputed that during the weeks when Victoria was slowly starving to death, Mr. O’Dea carried on with his normal activities, including socializing with friends and drinking at bars. His prolonged indifference to Victoria’s suffering is shocking.
[36] In sum, it was a long, lonely, and wretched decline for an utterly innocent child. The autopsy photographs of her shrunken, emaciated body are horrifying. It is incomprehensible how anyone can stand by and watch their child starve to death, in obvious agony, over a period of weeks, if not months.
Legal Framework for Sentencing
[37] The Crown seeks a penitentiary sentence of 20 years; the Defence argues a sentence in the range of 10 to 16 years is sufficient.
[38] A review of the jurisprudence on child abuse reveals certain common principles:
Serious crimes of violence against defenseless children warrant a strong response from the courts, particularly where this results in the child’s death: R. v. Alexander, 2011 ONSC 6839, at para. 78, aff’d 2014 ONCA 22, at para. 45; R. v. M.B., 2015 ABQB 156, at para. 83; R. v. Johnson, [1995] O.J. No. 3764 (Gen. Div.), at para. 13;
The range of sentence for extreme child abuse is 12 – 20 years: D.D., at para. 7;
Denunciation and deterrence are the paramount sentencing considerations: D.D., at para. 15; R. v. Costello, 2003 BCCA 421, at para. 16;
Evidence of a pattern of abuse that was deliberate and protracted is an aggravating factor: Costello, at paras. 14 and 18; R. v. G.S.J., [2007] O.J. No. 5079 (S.C.), at para. 7; R. v. Lawrence (1987), 1987 CanLII 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.), at pp. 81-82; R. v. Moracci (1977), 20 N.S.R. (2d) 684, at p. 703;
Offenders who were themselves victims of abuse or who suffer from mental illness may have limited abilities to cope as a parent: R. v. Alexander, 2014 ONCA 22, at para. 33; R. v. K.M., 2007 CanLII 13937 (Ont. S.C.), at paras. 28 and 30.
A guilty plea, particularly at an early stage and where accompanied by sincere remorse, is a significant mitigating feature: R. v. Summers, [2011] O.J. No. 6377 (S.C.), at paras. 27-28.
[39] In addition to the guidance derived from case law, there are statutory directives that underscore the grave nature of this offence. Section 718.01 of the Criminal Code stipulates that when a court imposes a sentence for an offence that involved the abuse of a person under eighteen years, it “shall” give primary consideration to the objectives of denunciation and deterrence. Further, under ss. 718.2(a)(ii), (ii.1) and (iii), a sentence “should” be increased where the offender abused a member of his family, or a person under the age of 18, or someone to whom he was in a position of trust or authority, all of which apply in this case.
[40] Cases submitted by the Crown, where offenders were found guilty of manslaughter against a child, resulted in sentences ranging from 9 to 20 years: D.D., at paras. 2 and 17; Alexander (2014), at paras. 1 and 47; M.B., at para. 98; Lawrence, at p. 82; R. v. Goforth, 2016 SKQB 75, at paras. 225-228. Duration of sentence depended on a range of circumstances, including: the nature of the abuse; whether it was prolonged or included prior acts of abuse; the presence of a guilty plea with remorse; and, the offender’s personal circumstances.
[41] The Defence took “no issue” with the sentencing decisions advanced by the Crown, and offered only one additional case for the court’s consideration, namely R. v. Cox, 2011 ONCA 58, where the court upheld a sentence of nine years for manslaughter. There the accused’s sister, who had autism and profound developmental delay, was found dead in the basement of the home they shared. She was grossly underweight and covered in fecal matter. At her death she was 23 years old, but at age 15 her language skills had been less than those of a three-year old child, and she needed help with everyday tasks such as dressing, eating and bathing. The offender was the primary caregiver for her sister and had kept her confined in the basement behind a locked door that could only be opened from the other side. There was no washroom in the basement, nor was there access to food or running water. At her death she weighed 84.5 pounds, with the normal weight for a young woman of her height being 125 pounds. The sole mitigating factor was the offender’s lack of a criminal record: Cox, at paras. 2, 8-12, 16 and 52.
[42] I accept that the Cox decision contains certain similarities to this case and deserves consideration in the analysis. At the same time, there are some important differences. First, while Ms. Cox was the primary caregiver, she was the adopted sister of the deceased, not her parent. Moreover, Ms. Cox shared that responsibility with her husband, Orlando Klass, who pleaded guilty to criminal negligence causing death, thereby acknowledging his shared responsibility for the death. Here, Mr. O’Dea was Victoria’s parent and the sole caregiver. He had exclusive custody of her. No one else had access to Victoria or an opportunity to intervene. He was all she had.
[43] Second, I find it significant that Victoria’s decline coincided with the court battle Mr. O’Dea was waging against Victoria’s mother, Ms. Ashley. As he told the police, he was furious that Ms. Ashley had not only recently been awarded unsupervised access but was moving to secure a court order for overnight visits. He considered Ms. Ashley to be a horrible mother and was determined to oppose her having contact with Victoria. Although his daughter had just died a few hours before, Mr. O’Dea thought it very important to document for the police, in great detail, all of Ms. Ashley’s alleged defects as a mother, despite it being clear Ms. Ashley could not be responsible for the death as she had not been allowed to even see Victoria in the last few months. The arrogance, not to mention irony, of Mr. O’Dea’s behaviour is staggering.
Analysis
[44] Many words easily come to mind to describe this crime: “callous,” “inhuman,” and “ruthless” are amongst them. For a father to sit by, day after day, week after week, and watch his daughter wither away from hunger is almost impossible to comprehend. It takes a unique kind of depravity to commit this crime, especially given that throughout Victoria’s long and agonizing slide to death, Mr. O’Dea fed himself just fine. There was plenty for him, and nothing for her.
[45] This was not a case of a parent who, in a moment of frustration, struck or threw a child, causing their death. This was a cold, deliberate, and prolonged torture. For weeks on end, the offender deliberately withheld food and water from his daughter, and watched her shrivel away. She was isolated and utterly dependent on Mr. O’Dea. He knew he was the only person that could help Victoria because he had, up to that point, successfully kept her mother away and no one else was around the apartment. Throughout this time, he nourished himself quite adequately. The offender has shown no remorse for his actions, and there is no suggestion his conduct arose from a psychiatric condition, severe depression, or a very low level of intellectual functioning.
[46] Finally, while rehabilitation is an important sentencing goal, particularly for a first offender, Mr. O’Dea’s rehabilitative prospects seem poor. He has shown no genuine remorse – any regret he has expressed is entirely based on his association with Victoria’s mother, Hiliary Ashley, whom he vilifies. It is astounding that during the police interview that took place in the hours immediately following Victoria’s death, Mr. O’Dea launched into several tirades against Ms. Ashley, even though she undisputedly played no role in Victoria’s demise. Far from mourning his daughter, he was obsessed with demonizing her mother.
[47] It is impossible to fathom how anyone can harden their heart to the degree seen here, much less a father to his own daughter. As observed by Justice Molloy in Alexander (2011), at para. 55, the killing of one’s own child “is a crime so heinous that a lengthy sentence is required to reflect society’s abhorrence.” Indeed, this is among the cruelest crimes I have seen as a trial judge.
[48] After considering the immense cruelty inflicted, the extreme suffering that resulted, the length of time it went on, and, most of all, Mr. O’Dea’s complete abandonment of his duty as Victoria’s father, I find that a fit sentence in this case is 15 years of imprisonment. Mr. O’Dea shall receive credit for 31 days of pre-trial custody at the rate of 1.5 per day, amounting to 46.5 days, which I have rounded up to 47 days. There will also be a DNA order and a s. 109 order for life, and an order pursuant to s. 743.21(1) prohibiting Mr. O’Dea from communicating with Ms. Ashley during the custodial period of his sentence.
Baltman J.
Released: October 1, 2021
COURT FILE NO.: CR-17-452
DATE: 2021-10-01
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
FRANK O’DEA
REASONS FOR SENTENCE
Baltman J.
Released: October 1, 2021