COURT FILE NO.: 21-051
DATE: 20211013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JENNIFER MARIE MORALES
Defendant
M. Flosman and K. Ginn, for the Crown
A. De Marco and N. Sookram, for the Defendant
HEARD: September 23, 2021
REASONS FOR SENTENCE
FUERST J.:
Introduction
[1] Jennifer Morales pleaded guilty to criminal negligence causing the death of her infant son, Douglas. She specifically admitted that she put her child in an environment in which she knew he was exposed to and potentially had access to lethal narcotics, and so breached her duty to him as a parent to protect him from such exposure and access, thereby showing a reckless disregard for his life.
The Circumstances of the Offence
[2] In April 2020, Jennifer Morales and her 11 month old son Douglas were living in Wasaga Beach at a residence owned by an acquaintance, David Gayne.
[3] Ms. Morales and her son stayed in one of the bedrooms and shared a bed.
[4] On April 17, 2020, Mr. Gayne told Ms. Morales by text message that she was no longer welcome in his home.
[5] Mr. Gayne returned home sometime before midnight that evening. He found Ms. Morales and Douglas on the bed the two shared. Douglas was unresponsive and blue.
[6] Mr. Gayne accessed a video on his phone that instructed how to perform CPR on a child. He gave it to Ms. Morales.
[7] At 11:51 p.m. Ms. Morales called 911. She attempted to perform CPR on Douglas while on the phone with the 911 operator.
[8] Emergency personnel arrived at the home quickly. As they worked on Douglas, Ms. Morales was distraught and upset. She repeatedly asked them to save her baby.
[9] Douglas was taken to hospital where he was pronounced deceased. Cause of death was determined by post-mortem examination to be acute intoxication by fentanyl.
[10] In their search of the residence, police found a red tin in the kitchen. It contained methamphetamine pills. In the bedroom used by Ms. Morales and Douglas, there was a duvet on the bed with a purple stain and a container of toddler crackers. On the bedside table there was a spoon, a baby bottle, a styrofoam dish with tin foil displaying burn marks and a cigarette pack, a metal tool, a partially smoked joint, and a cut straw. A cut straw and a razor were on the floor near the bedside table. There was a glass pipe in between the bedside table and the wall.
[11] On the floor between the bed and the bedside table the police found a purple rock-like substance, a cut straw, wood dowels and a small plastic bag. The rock-like substance was fentanyl cut with a benzodiazepine that increases the toxicity of fentanyl.
[12] Police investigation revealed that Ms. Morales purchased fentanyl on the afternoon of April 17, 2020. She admitted to police that she smoked a point of fentanyl that date. She told police that she was unsure what time she and Douglas fell asleep on the bed, but she woke up to Mr. Gayne slapping her. She found her son unresponsive with purple liquid around his mouth and on the blankets.
[13] Ms. Morales was arrested on September 22, 2020. She had a small bag of fentanyl in her hotel room.
[14] She has remained in custody since her arrest.
The Circumstances of Ms. Morales
[15] Ms. Morales, now 40 years old, reports having had a difficult childhood and adolescence. Her parents verbally and emotionally abused her. Her brother sexually abused her.
[16] She left her parents’ home when she was in grade nine and lived at the home of a friend before being taken to live with an aunt. She dropped out of high school in grade 11. She later completed a diploma in Hospitality. However, her employment history is spotty. In 2006 she began working as an escort.
[17] Ms. Morales has a son who is 18 years old. I am told that he is estranged from her.
[18] Ms. Morales has a significant history of substance abuse. She started drinking when she was 15 years old. She began using cocaine when she was 16 years old. She attended a rehab program in 2008 and was sober for two years, but relapsed around 2010 when she met the man with whom she later had Douglas. She continued to use cocaine until her arrest in 2020.
[19] She first used fentanyl in 2018. She switched to methadone when she was pregnant with Douglas, but began using fentanyl again after his birth. Following her arrest, she was placed on methadone. She continued taking methadone while in pre-trial custody.
[20] Ms. Morales was under the care of a psychiatrist from 2008 to 2011. Apparently, he diagnosed her with Borderline Personality Disorder, Bipolar Disorder, and Post-Traumatic Stress Disorder. She also has a substance use disorder. She currently takes an anti-depressant.
[21] Ms. Morales has a dated criminal record that includes convictions for assault police officer and assault with a weapon.
[22] While in pre-trial custody Ms. Morales completed a number of programs, including those dealing with substance use, changing habits, and living with pain and loss.
[23] Dr. Julian Gojer met with Ms. Morales by videoconference and prepared a report that was submitted on the sentencing hearing. I note that it is based almost entirely on Ms. Morales’ self-report. Dr. Gojer did not conduct interviews of anyone else, or obtain records of Ms. Morales’ past psychiatric treatment. He suggests that Ms. Morales has a variety of disorders including Other Specified Trauma and Stressor Related Disorder, and Opiate and Stimulant Abuse Disorder. He recommends that she have drug abuse treatment as well as treatment for her trauma, both in custody and on her release to the community.
[24] The Rehabilitation Officer at the Sudbury District Jail where Ms. Morales is held is assisting her with discharge planning, including making applications to treatment centres and community-based organizations such as the Canadian Mental Health Association.
[25] In her remarks to me, Ms. Morales expressed that her son’s death is her fault, that he deserved better, and that his loss is very painful to her.
The Positions of the Parties
[26] Crown and defence counsel jointly ask that I sentence Ms. Morales to two years in jail, less her time in pre-trial custody calculated at one and a half to one, followed by two years of probation, and that I make a DNA order. They submit that such a sentence takes into account the aggravating factors, including that the offence involves the loss of an infant because his parent failed to carry out her duty to protect him, and the mitigating factors including Ms. Morales’ traumatic childhood and her incarceration during the COVID-19 pandemic. They say that such a sentence gives effect to the sentencing objectives of denunciation and deterrence.
The Principles of Sentencing
[27] The Criminal Code sets out a number of principles of sentencing that govern a judge’s determination of the appropriate sentence in any given case. The objectives of sentencing are specified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community.
[28] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors, including that the offender abused a person under the age of 18 years, and that the offence had a significant impact on the victim. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.
[29] As the Court of Appeal for Ontario pointed out in R. v. Lis, 2020 ONCA 551 at paragraph 57, s. 718.01 assigns primacy to the objectives of denunciation and deterrence when sentencing for an offence that involves the abuse of a child.
[30] While this is not a case in which the victim was subjected to ongoing intentional mistreatment, and indeed Douglas was found on post-mortem examination to be a well-nourished, healthy child, exposing him to lethal narcotics was a form of abuse.
Analysis
[31] In every case, the determination of a fit sentence is a fact-specific exercise, not a purely mathematical calculation. As the Supreme Court of Canada put it in R. v. Ferguson, 2008 SCC 6, at paragraph 15, “The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction”. The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge: see R. v. Lacasse, 2015 SCC 64, at paragraphs 58 and 143.
[32] The aggravating circumstances in this case include:
Douglas was extremely vulnerable and absolutely dependent upon Ms. Morales for his care, given that he was only 11 months old.
The consequence of Ms. Morales’ criminal negligence was the loss of an infant’s life.
Although no Victim Impact Statements were provided, I am told and I accept that the loss of Douglas was devastating to his extended family including his grandparents.
Ms. Morales took no steps to ensure that Douglas did not access a very potent form of fentanyl, and by her own consumption of the drug that day decreased her ability to protect him from risk of harm.
Although it is dated, she has a previous criminal record.
[33] There are, however, important mitigating factors, including:
Ms. Morales pleaded guilty, which is a sign of remorse and willingness to accept responsibility for her actions.
While her offence is very serious, this is not a case of ongoing mistreatment or neglect of her child.
The death of her son and her fault for it is a burden that she will carry for the rest of her life.
Ms. Morales had a traumatic childhood and adolescence, which led to her drug addiction.
She has been in custody during the COVID-19 pandemic, when persons living in congregate settings like jails have been at increased risk of serious illness.
While in custody she has participated in rehabilitative programming. She wishes to participate in rehabilitative measures on her release to the community. She has adapted to methadone treatment while in jail. This is particularly important, because her willingness and ability to abstain from illicit drug use, whether through methadone treatment or otherwise, is critical to her rehabilitation.
[34] In all the circumstances, I accept the joint submission put to me by Crown and defence counsel. It reflects the gravity of the offence and the primacy of denunciation and deterrence. It brings home to Ms. Morales her high moral blameworthiness for her son’s death, while not extinguishing prospects of her rehabilitation.
Conclusion
[35] Ms. Morales, I sentence you to two years in jail, less 387 days spent in pre-trial custody calculated at one and a half to one as 581 days. This leaves a custodial sentence to be served of 149 days.
[36] The custodial sentence will be followed by two years of probation. The conditions of probation are the statutory conditions plus the following:
Report to a probation officer immediately upon your release, in person or by telephone, and thereafter as required.
Reside at a place approved by your probation officer.
Take such counselling as approved by your probation officer and not stop it without the prior written approval of your probation officer.
Sign releases of information so that your probation officer can monitor your progress in counselling.
[37] I make a DNA order, which is to be complied with within seven days.
[38] I recommend that Ms. Morales remain at the Sudbury District Jail until her custodial sentence is completed, and that Kelly Spry or her designate assist Ms. Morales with discharge planning. It is clear that she will need significant community supports on her release.
[39] I direct that a copy of Dr. Gojer’s report and Ms. Spry’s recommendations be provided to the probation officer.
The Honourable Justice M. Fuerst
Released: October 13, 2021
NOTE: These written Reasons are to be considered the official version and take precedence over the oral Reasons read into the record. In the event of discrepancies between the written and oral versions, it is the written Reasons that are to be relied upon.
COURT FILE NO.: 21-051
DATE: 20211013
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JENNIFER MARIE MORALES
Defendant
REASONS FOR SENTENCE
JUSTICE M. FUERST
Released: October 13, 2021