Court File and Parties

COURT FILE NO.: CR-22-40000411 DATE: 20231117

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – RODRIGO FLORES-ROMERO

Counsel: Allison MacPherson and Stephanie Abrahams, for the Crown Paul Mergler, for the Defendant

HEARD: October 12, 2023

P. CAMPBELL J.

Reasons for Sentence

[1] Mr. Flores-Romero was tried by a jury for second degree murder. The jury returned a verdict of not guilty on that charge but guilty of the included offence of manslaughter. Mr. Flores-Romero beat to death Wynonna Noganosh who was just under 3 years old at the time of her death. Wynonna was the daughter of Mr. Flores-Romero’s fiancée, Aliesha Noganosh. He appears before me to be sentenced. The Crown submits that he should receive a global sentence of 12 years imprisonment. The defence argues that the appropriate punishment is in the range of 6 to 8 years. The parties agree on deductions from the global term provided for by the Criminal Code.

A. Factual Background

[2] Aliesha Noganosh, an Aboriginal Canadian, lived on a reserve near Georgian Bay where she had secure and supportive housing. She resided with Wynonna and her brother Mason, a year older, both from an earlier relationship. At the time of these events Aliesha was pregnant by Mr. Flores-Romero. He lived and worked in Toronto and attempted to see Aliesha on weekends.

[3] On Wednesday, March 17, 2021, Aliesha, Wynonna and Mason travelled by bus to Toronto where they were met by Mr. Flores-Romero and began to stay with him in an apartment occupied by his mother. Aliesha felt very unwell the next two days, March 18 and 19, and largely remained on the living room sofa while Mr. Flores-Romero went to work. The evidence suggests that he was drinking heavily in this period and on the afternoon of March 19 he returned to the home with a bottle of whiskey which he was consuming and which, it is agreed, impaired his judgment.

[4] Mr. Flores-Romero had an established relationship with the children and took them outside that day to play. After dinner, Aliesha, still feeling unwell and thinking that lemons might make her feel better, asked Mr. Flores-Romero to go to a supermarket and buy some. He agreed and asked if he could take the children with him, to which Aliesha agreed.

[5] Most of his movements, and those of the two children, on the trip to the store were captured by security camera footage from the supermarket, from a community centre parking lot where the homicide occurred, and from the apartment building parking lot. Street level cameras record his car in various locations and the vehicle was also tracked through its on-board computer.

[6] On the way to the store, a large Metro supermarket in the northwest area of Toronto, Mr. Flores-Romero can be seen on security camera footage driving through stop signs, though he had only a G-1 learner’s driving license. The two children were not properly placed in their rear car seats.

[7] At the supermarket, Mr. Flores-Romero appears to be conscious of the presence of the children, attempting with some success to supervise and engage with them. He sent their mother text and voice messages, including ones with videos of the Mason and Wynonna. His interactions with the children captured by cameras in the store were routine and gave no hint of what would follow minutes later.

[8] The threesome left the store after about 19 minutes of shopping, during which they purchased lemons and several other items, then returned to Mr. Flores-Romero’s vehicle in the parking lot. They drove back in the direction they had come, along main streets, until they were a few minutes from the apartment building. At that point, the car left a main road and took a somewhat circuitous route on secondary streets around the parking lot of a community centre. The parking lot was largely empty and Mr. Flores-Romero parked his car close to the community centre building, in an area outside the view of the centre’s security cameras. Mr. Flores-Romero testified that he drove in there because Wynonna had said she needed to “pee”.

[9] Why Mr. Flores-Romero drove into this obscure location, and what he did there, before driving with the two children back to the apartment building, was the focus of the jury trial. It is common ground that Wynonna left the parking lot, in the back seat of the car, sitting in her car seat, with injuries on all sides of her body, from her forehead to her knees. These injuries caused the massive internal bleeding which later resulted in her death.

[10] Mr. Flores-Romero acknowledged that it was his contact with Wynonna that caused these injuries. On his account, however, they happened as he was helping her walk back to the car, after she had finished urinating, and he accidentally tripped on her foot and fell on her. The Crown argued that the number, range and extreme severity of the injuries proved that he had deliberately assaulted her, many times, in an act of explosive rage.

[11] Mr. Flores-Romero’s culpability, the Crown argued, was further evident from his conduct immediately after leaving the community centre when he made two attempts to divert attention from her condition in an effort to protect his own interests. It is implicit in the jury’s verdict convicting Mr. Flores-Romero of culpable homicide that it wholly rejected his account of accidental injury, which they were instructed would lead to acquittal, and found that he performed the actions – repeated assaults all around her body—that led to her death.

[12] The first of Mr. Flores-Romero’s efforts at deflecting suspicion was in the apartment building parking lot. There, standing outside the car, he used his smart phone to record Wynonna and Mason in the rear seat. He acted as though he had just come upon and was documenting Wynonna in the aftermath of a toileting accident. He sent this short video to Aliesha. After doing so, he removed Wynonna from the rear seat and attempted to place her on the pavement outside the car in a standing position. She crumpled to the pavement, prompting him to pick her up and carry her into the home.

[13] Mr. Flores-Romero entered the unit in a position where he and Wynonna were briefly visible to Aliesha. Instead of telling Aliesha about Wynonna’s obviously stricken condition, or what had precipitated it, he elected to take her immediately upstairs and give her a bath. This had the inevitable effect of concealing from somebody who would have taken action, the medical crisis that Wynonna was experiencing and of which Mr Flores-Romero was now well aware. The bath gave him a plausible foundation to concoct a false explanation for her injuries when she came to the attention of medical personnel soon afterward.

[14] After a considerable time with Mr. Flores-Romero and Wynonna in the upstairs bathroom, Aliesha demanded that Wynonna be brought down. She observed Wynonna to be lethargic and attempted CPR. Her condition was obviously grave, and the boyfriend of Mr. Flores-Romero’s mother advised that she had to be taken immediately to hospital. Mr. Flores-Romero drove Aliesha, Wynonna and Mason to the nearest hospital. There, he exited the car and ran swiftly into the emergency department, carrying Wynonna, and turned her over to medical personnel. Quizzed by them about what he knew of Wynonna’s injuries, he lied and said that she had slipped in the bathtub and hit her head. Wynonna had no vital signs at the time of her arrival in the hospital and was pronounced dead when resuscitation measures proved fruitless.

[15] Mr. Flores-Romero, while still at the hospital, was arrested and charged with murder. The investigation which followed, focused on obtaining video images and cell phone records, allowed much of Mr. Flores-Romero’s outing with Wynonna and Mason to be closely documented, though the minutes they spent in the community centre parking lot were not captured directly on camera.

[16] Confirming the brutality of the assault, the post-mortem recorded on Aliesha’s exterior about seven lacerations and contusions on the head and neck, about 15 more on the torso, and a dozen or more on the arms and legs. While these external injuries provide shocking testament to the breadth and severity of the attack, its fatal effects were internal. There were bleeding injuries from the mesentery, the diaphragm, the duodenum, the caecum, the large intestine, the liver and the pancreas. Death was ultimately caused by the loss of blood, almost all of it internally, which led to loss of consciousness and then death.

B. Personal Background of the Defendant

[17] Mr. Flores-Romero is now 30 years of age. Along with a pre-sentence report, letters to the court from his mother and his sister, which were balanced and sensitively written, added some dimension to the court’s understanding of his background and character. He was born in Argentina but came to Canada with his mother and father when he was just five years old.

[18] His father is described as an abusive “hard-core alcoholic” who was ultimately deported from Canada. His mother remarried but his stepfather also behaved abusively. As a youngster, he developed signs of anger and aggression at school along with significant psychological challenges including self-mutilation, Tourette’s syndrome, attention deficit hyperactivity disorder, suicidal ideation and, in recent years, depression and an anxiety disorder. In 2008, he spent a year in a residential youth treatment centre. He has qualified for Ontario Disability Support Program payments since he was 18 years old. He is a hard worker, with skills in several areas of construction labour, his favourite of which is framing buildings.

[19] Mr. Flores-Romero has a history of illicit drug use and a serious problem with alcohol. In the years preceding this offence, he drank to the point of intoxication very frequently. In his own account of the events surrounding his killing of Wynonna, he says the crime would not have happened but for his drinking.

[20] Considerable attention was paid in submissions to the position taken by Mr. Flores-Romero on his degree of culpability in the death of Wynonna. He was convicted by the jury of manslaughter resulting from a prolonged, very violent assault on a young child with whose care he had been entrusted. While purporting to assume “full responsibility” for her wrongful death, it appears that he maintains that his fault lay in drinking to excess and then, while attempting to care for her when she needed a toilet stop, falling on top of her by accident. This is a preposterous account by Mr. Flores-Romero of what happened to Wynonna, false not only in its factual details but in its deflection of moral responsibility, and therefore false not only to Wynonna and her survivors but to himself.

[21] Mr. Flores-Romero remained in custody following his March 20, 2021 arrest and has been behind bars for 973 days as of the imposition of sentence. By the now commonplace calculation supported by s. 719(3.1) of the Criminal Code, this translates to four years virtually to the day, a credit the prosecution accepts is available to Mr Flores-Romero. He has spent 412 of those days in full or partial lockdown, another of the many lamentable illustrations of government underfunding of the corrections system, which holds in pretrial custody thousands of men and women, who are presumptively innocent and some appreciable number of whom are undoubtedly innocent in fact. Some of this time in custody has been under the blight of the Covid pandemic. There is evidence, supported by medical documentation, of Mr. Flores-Romero being on the receiving end of assaults in custody which the prosecution does not accept have been proved but which I regard as plausible and not refuted by contradictory evidence. There is a foundation for assessing the quantum of sentence in light of the analysis in R. v. Duncan, 2016 ONCA 754 as explained in R. v. Marshall, 2021 ONCA 344 at paras. 51-52.

C. The Impact of the Offence

[22] I received six victim and community impact statements which painted a portrait of Wynonna as a well-loved, warm and precocious toddler surrounded by affection and support. Her loss devastated a family and shocked a community.

[23] The victim impact statement of Aliesha Noganosh concludes movingly:

This is what I’m left with. Only photos and videos of my baby are what I get to see and hear if I ever want to hear my princess’s voice ever again. Instead of cuddling and falling asleep together holding each other, now I have to sleep with a cold, hard urn if I want to feel like she’s near me ever again. I’ll never hear her beautiful laugh and never get to see her smile or play with her big brother ever again. I’m haunted by the thought that I’ll never get a hug from my baby. I’ll never get to brush her beautiful long chestnut brown hair, or hear her little pitter patter feet in the morning. I will never hear “I love you mom” again.

[24] Four other friends and family members sketched a portrait of Wynonna that was vivid and touching. As their words brought her briefly to life in court, the void left by her death became ever more apparent.

[25] Kevin Myran, a worker with the Toronto Council Fire Native Cultural Centre, said near the end of an eloquent testimonial to the life of Wynonna and to the suffering and resilience of Aliesha, these words:

Winnie was known by many community members in Toronto. She will be missed very much. We will never see her do her first pow wow dance steps or be able to give her eagle feather when she has earned it. We will never see those good things she would do to earn those feathers. We will never see her complete her berry fast and become a woman. The community will never have a chance to hear her voice behind the traditional drum or to feel that good feeling when she dances for the people. She will never have a chance to attend Sundance and learn how we pray for our community. Our elders will be missing her when telling stories in the winter about our people. She will be missed by our community.

[26] The profound and permanent ache caused by the death of a small child can be lost in the dry effort of the law to balance competing considerations, legal principles and sentencing objectives to reach a just punishment. The victim impact statements have provided but a glimpse of the life that Wynonna might have led and the person she might have become but that lost life must be kept steadily in sight throughout the process we are now bringing to a conclusion. The law compels this just as decency demands it.

D. The Positions of the Parties

[27] Mr. Mergler, on behalf of Mr. Flores-Romero, argues that this should not be thought of as an “aggravated manslaughter” emphasizing the personal struggles and disadvantaged childhood of the defendant; the role of alcohol in the offence, the brevity of the attack and its lack of planning, along with the absence of long-term abuse. He urged the court to consider a sentence in the range of 6 to 8 years noting that 8 years is the lower bound of the range typically cited for aggravated forms of manslaughter. While recognizing that statutory directives require denunciation and deterrence to be the primary considerations shaping the sentence, Mr. Mergler stressed that Mr. Flores-Romero is a hard worker, with a measure of family support, and is capable of rehabilitation, a consideration which cannot be disregarded.

[28] Ms. MacPherson, on behalf of the Crown, argued that this offence fell squarely within the category of aggravated manslaughter, for which 8-12 years of imprisonment is appropriate, and that Mr. Flores-Romero should receive a sentence at the upper end of that range. She emphasized the vulnerability of Wynonna, by reference both to her very young age and her Aboriginal background; the relationship of trust, both generally and that night, between her and Mr. Flores-Romero; the brutality of the beating; his calculated efforts to conceal what he had done while Wynonna was undergoing an obvious – ultimately fatal – medical crisis; and the absence of any meaningful mitigating remorse evident in his words or behaviour.

E. Analysis

(i) Statutory Provisions

[29] Manslaughter may attract sentences as punitive as life in prison or as slight as a suspended sentence: Criminal Code s.236. The many forms the crime may take make especially important, and useful, the directives in the Criminal Code about what factors a judge should consider, and the weight and priority they should be given, in an individual case. Here, as both counsel recognize, most of those directives point toward a sentence that gives priority to goals of denunciation and deterrence – that is, to a longer term of imprisonment.

[30] Section 718.01 requires that denunciation and deterrence be given primacy in any sentence where the victim is under 18 years of age – a child. That is of significant import in a case where the victim was as young and vulnerable as Wynonna and so helpless to protect herself. Denunciation and deterrence are not objectives that can be subordinated to considerations more personal to Mr. Flores-Romero, though such considerations do exist here and require recognition: R. v. Lis, 2020 ONCA 551 at paras. 47-48.

[31] The primacy of denunciation and deterrence is again recognized in s.718.04 which makes those the primary objectives where a victim is vulnerable because of personal circumstances. The section then highlights two personal circumstances which create vulnerability, both specific to Wynonna – that she was Aboriginal and that she was female.

[32] I do not understand the application of s. 718.04 to be restricted to cases where the victim’s vulnerability can be directly linked to the circumstances surrounding the offence itself – which may be difficult to demonstrate in a particular case. It is intended, rather, to address the fact that for a range of reasons vulnerable people are victimized more frequently, in more ways, than powerful and privileged members of society, and to afford them special protection. The vulnerability of Aboriginal children is a deplorable and well-documented part of Canadian history and the same is true of Aboriginal females. Both groups have been the subject of major public inquiries which have produced searing findings that justify the special protections in s. 718.04: see Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls and The Final Report of the Truth and Reconciliation Commission of Canada. A linear or causative connection between the vulnerability and the offence is, in my view, not required for s.718.04 to apply. There is, of course, no doubt that Mr. Flores-Romero knew that his victim was both Aboriginal and female.

[33] Section 718.2(a)(ii) also requires a court to treat as an aggravating factor the commission of an offence against a “family member”. Whether this section applies in its terms directly to a man beating the child of his fiancée need not be determined. The abuse of a person under age 18, recognized as aggravating in sub-paragraph (ii.1) of s. 718.2(a) and the abuse of a position of trust and authority in sub-paragraph (iii.1) rest on essentially the same considerations and sharpen the focus on the enormous power imbalance between Mr. Flores-Romero and Wynonna and the dreadful breach of trust his behaviour represented.

[34] Sections 722 and 722.2 compel me to consider the effect of Wynonna’s death on her family and her community. The victim and community impact statements make clear that this impact is profound and indelible. It must be reflected in the sentence of Mr. Flores-Romero, though it must not dominate the analysis.

[35] There are broader objectives and principles also applicable here. It is fundamental that a sentence be proportionate to the gravity of the offence – which in this case is high – and to the degree of responsibility of the offender, which is also high, if slightly tempered by his personal challenges. The law also allows consideration of an offender’s potential for rehabilitation, and the value of measures to assist in it: s. 718 (a).

(ii) Authorities

[36] Despite these pointed statutory objectives and principles, courts must rely on case law to shape how they think about particular kinds or categories of crime. This is in part to achieve the goal of parity, so that similar cases received broadly similar treatment and no sentence is disproportionately punitive or lenient: s. 718.2 (b). This leads me to a discussion of some of the authorities to which I have been referred by counsel for both parties.

[37] I conclude that there is a reasonably well-recognized category of manslaughter case characterized as “aggravated manslaughter”, which has been held typically to attract a sentence in the range of 8 to12 years. This categorization has been applied to cases involving disparate circumstances. R. v. Clarke, 2003 ONCA 28199 at paragraphs 7-8 gave explicit approval to the range and overturned a 14-year effective sentence at trial as a result. In R. v. Devaney, 2006 ONCA 33666 the Court of Appeal reaffirmed the Clarke range while emphasizing that the facts of particular cases may justify sentences beyond the range, which should not be understood to foreclose case-specific considerations; it upheld an 11-year penalty for a man who stabbed a vulnerable female victim 107 times following a landlord-tenant dispute. See also R. v. Jones-Solomon, 2015 ONCA 654 at paras. 80-84.

[38] The “aggravated manslaughter” designation has been applied by courts in cases with causes of death as varied as strangulation (R. v. Besszer, [2006] O.J. No.3829); beating (R. v. Starostin, 2023 ONSC 3677; R. v. Tahir, 2016 ONCA 136, affirming [2012] O.J. No. 6449); and stabbing (R. v. Reed, 2013 ONSC 4247).

[39] I note that the Clarke range seems to have had less prominence in cases of manslaughter with child victims: see R. v. Alexander, 2014 ONCA 22 at paras. 41-45; R. v. France, 2017 ONSC 2987 and R. v. Jha, 2015 ONSC 4656 where Clarke and the 8-12 year range were not mentioned.

[40] The case law does not compel me to treat Clarke and cases applying it as setting upper or lower bounds on the available sentence for a serious case of manslaughter in circumstances such as these. Four years is a rather narrow and confining range for an offence punishable by up to life in prison which may be committed in such a variety of ways, on such a spectrum of victims, by so many kinds of accused, acting for such a range of reasons. In this case, if the facts were somewhat more aggravated – for instance, a homicide by beating as the culmination of a history of abuse – I would not have regarded Clarke as setting the upper end of the range to be considered. However, as the case has been presented to me, and after due consideration of the directives in the Criminal Code, I have decided it is appropriate to treat the “aggravated manslaughter” range as the framework for my consideration of Mr. Flores-Romero’s punishment. I believe it yields a just punishment, looked at in light of the statutory directives and cases of comparable gravity.

[41] With that said, a consideration of the senseless violence of Wynonna’s death; her utter vulnerability; the position of trust and authority assumed by Mr. Flores-Romero, and especially the callous self-interest he displayed in the aftermath of the crime, places this case firmly in the upper end of the Clarke range. I reject the suggestion that this was anything but a seriously aggravated culpable homicide demanding a sentence directed primarily toward denouncing the behaviour and deterring others from repeating it or other forms of child abuse. If there were any doubt about that based on the bare facts of the case, it would be erased by the many legislative directives emphasizing the need for significant punishment in a case such as this.

[42] Counsel for Mr. Flores-Romero placed considerable reliance on R. v. E.M., 2011 ONSC 1411 in which the accused lost her temper and beat her 34-month old daughter causing brain and spinal cord injury that led to her death. She later lied to hospital personnel about the cause of the injuries, claiming that the child had fallen downstairs.

[43] While I recognize some parallels to this case in E. M., I regard them as superficial and do not view it as a benchmark for Mr. Flores-Romero’s sentence.

[44] E. M. did not plan or premeditate her assault. It was a spontaneous outburst of violence arising from frustration. Though it is in dispute, I find as a fact that whatever prompted Mr. Flores-Romero to attack Wynonna as he did, he left the main route he was on and drove around the community centre, in search of a secluded location, so that he could assault her.

[45] I conclude this because if there was some urgency in assisting her to urinate, Mr. Flores-Romero would not have run any risk of giving offence, or causing embarrassment, if he had simply pulled over and allowed Wynonna to relieve herself at the roadside, behind the shield of a car door, or even with the activity concealed by his larger physical presence. He left the route he had taken to the store, which would have gotten the three of them back to the apartment in a few minutes of swift driving, and went instead onto a route south, west, and back again before going into a dark and deserted area of the parking lot and stopping. The time he spent after deviating from the straight path to the apartment until he parked is close to the time that would have been required to keep going on the main route to the apartment where Wynonna could have had help from her mother and access to a proper toilet.

[46] I do not accept that, impelled by an urgency to let Wynonna urinate, Mr. Flores-Romero chose to drive to a very private place, then let a child just out of diapers walk through a dark parking lot by herself to a lawn, handling her own winter coat and boots, to urinate, following which he held her hand on the way back to the car and tripped. That does not make sense. The obvious inference from the deviation from the regular route, the search for seclusion, and the terrible condition of Wynonna afterward, is that Mr. Flores-Romero took her to that location with the intention of committing a crime against her, not for a benevolent purpose more easily carried out at home or at the roadside. Whether it was her urinating in his car, or some other offence on her part, I am satisfied the assault was not a spontaneous eruption of frustration due to a stimulus that arose in the parking lot itself.

[47] More significantly, though the mother in E.M. misled medical personnel at the hospital, she did nothing remotely as egregious as Mr. Flores-Romero in the aftermath of her conduct. Rather, she immediately called 911 after realizing her daughter was seriously hurt and was so desperate to get her to hospital that she set out with her by car while waiting for the ambulance, which happened to arrive before she got out of the parking lot. This is a sharp contrast to the reaction of Mr. Flores-Romero who drove back to the apartment parking lot with a barely responsive child, created a video to send to her mother that was intended to paint a cheerful portrait of a terrible and worsening situation, then carried her upstairs for a bath to avoid exposing her condition to her mother, all in an effort to escape accountability for what he had done – though he knew by the time he entered the apartment that Wynonna was so badly injured she could not stand up. This was a grave moral failing and, by itself, would go far toward placing this case in the “aggravated” class of manslaughter.

[48] In E.M., the 8-12 year range was described by the court as applying to “near murder” cases. I do not read the authorities following and discussing Clarke in that way nor, in principle, do I believe the 8-12 year range should be reserved for cases where the mental state of the accused is “almost” that defined in s. 229 (a) of the Criminal Code. Other circumstances, including planning, a pattern of abuse, vulnerability, a violation of trust, brutality, and self-interested concealment of the harm done after the offence can, alone or in combination, place manslaughter in the “aggravated” category, with the range of sentence that calls for.

[49] Finally, there was a foundation for a finding of significant personal remorse by the accused in E.M., despite her decision to plead not guilty. This finding was based on intercepted phone calls in which she expressed genuine remorse. I cannot make a comparable finding in this case, based on Mr. Flores-Romero’s post-trial denial of guilt and his formalistic acceptance of “responsibility” for a death he maintains was an accident to which his intoxication contributed.

[50] Clarke itself was also cited on behalf of Mr. Flores-Romero, though it is the source of the 8-12 year range for aggravated manslaughter. The Court of Appeal reduced a 14-year sentence to 9 years in a case where a young man brutally stabbed a much older man and delayed seeking medical aid for him. My view of Clarke is that the vulnerability of the victim was much less pronounced in that case, the offence was spontaneous, and the delay in summoning help was significantly less calculated than in this case.

[51] R. v. DaSilva, [2005] O.J. No. 2389 was a case of maternal neglect attracting only a three-year sentence and Justice Watt expressly placed the case in a distinctly less serious class of manslaughter. The case provides little assistance with the present matter. The judgment, at para. 96, notes that the risk of harm is a gauge of the “degree of responsibility” of an offender as manslaughter requires foreseeability of a risk of bodily harm. That, of course, was not an issue in this case, given the nature, number and force of the blows, as Mr. Mergler acknowledged in his candid answers to a series of questions I posed about the implications of the verdict. A reasonable person would obviously foresee that the blows were going to be harmful, and it was obvious that as Mr. Flores-Romero delivered his blows, he realized that as well.

[52] R. v. K.K.L., 1995 ABCA 196 is a dated case in which the accused, in frustration, placed his daughter, who was resisting a diaper change, on the floor with excessive force and broke her skull. The Alberta Court of Appeal raised a 3-year sentence to 4 ½ years. The case featured nothing comparable to the aggravating aspects of this case. It precedes the legislative provisions I discussed above, and does not add to the identification of an appropriate range. Insofar as it, like K.K.L., stresses that the degree of fault in the underlying unlawful act is important to fixing sentence, I consider it inescapable that the fault was very high in this case. The severity of both the visible injuries and the widespread internal injury precludes any other conclusion. K.K.L. is not a helpful guide to the sentencing of Mr. Flores-Romero.

(iii) The Appropriate Sentence

[53] Considering the “aggravated manslaughter” paradigm and the 8-12 year range it frequently supports as my framework, I find the offence in this case to be very near the top of the range in its objective gravity. I reach that conclusion based to a small degree on Mr. Flores-Romero’s minutes of forethought in advance of the crime and to a significant degree based on the wanton violence of the assault itself, the vulnerability of Wynonna to a man entrusted with her care, and the callousness and calculation of the attempt to protect his legal interests, potentially at the cost of her life, afterward. He beat to death a child not yet three years old for reasons that could be no more than trivial then tried to hide it while well aware that she was incapacitated and barely conscious. Besides the life lost, other lives were shattered and the community stricken. Even without an explicit statutory directive, this would demand a denunciatory and deterrent emphasis in sentencing. In my view, it lacked only a pattern of earlier abuse to be at the highest level of “aggravated manslaughter”, or even beyond the range associated with that class of offence.

[54] Once denunciation and deterrence are assigned priority, countervailing factors can be given only limited effect. They are cognizable but not compelling.

[55] Mr. Flores-Romero’s own challenges involving mental illness and addiction, and the abuse he experienced at the hands of his own father, which may have contributed to his own rage toward Wynonna, merit consideration but can mitigate his crime only to a modest extent.

[56] I have considered the submission that Mr. Flores-Romero is capable of rehabilitation because he has only a minor criminal record, a supportive family and a strong work ethic. I accept those facts, but I am frankly concerned that he has not yet acknowledged and begun to deal with the enormity of his crime. He has an alcohol problem. He clearly has a problem with controlling anger. I am not sure that he knows it, but the events of March 19, 2021 are going to shape and define the rest of his life. He will find no internal peace, nor societal acceptance, until he admits what he did and works toward redemption. I have little confidence that he will become the man he aspires to be, and that I can see his mother and sister want him to be, without looking directly at what he did. He must begin the painful climb back to reform and redemption on a path of honesty. I hope he finds that path, but the first step is a hard one. I fear for him a future in an unfamiliar country, rootless and still plagued by alcoholism, in the years after his sentence is completed, if he does not squarely face his wrongdoing. I cannot attach significant weight to his prospects for rehabilitation when they are not grounded in genuine remorse.

[57] The difficult time Mr. Flores-Romero has spent in pre-trial custody, during a pandemic with frequent lockdowns, facing charges of murdering a child, merits some recognition in his sentence: see Marshall at paras. 51-52. So do the factors that have held him back in his own life – mental illness, addiction and childhood abuse. The same is true of the uncertain but, for him, surely distressing prospect of deportation to Argentina. These are, however, considerations at the margin in a sentence shaped mainly by aggravating factors.

[58] But for mitigating personal factors, the objective gravity of his offence, looked at within the range of cases described as aggravated manslaughter, would merit a sentence of 11 years. The Duncan considerations, personal factors and collateral immigration consequences lead me to reduce that otherwise fit penalty by a year, to 10 years.

[59] As of today, Mr. Flores-Romero will have been in custody for 973 calendar days, beginning on March 20, 2021 and ending on November 17, 2023. Applying to that figure a multiple of 1.5, it equates to 1460 days or four years already served. That amount will be subtracted from 10 years to yield an effective sentence, still to be served, of 6 years.

[60] In addition, Mr. Flores-Romero will be subject to an order under s.109 of the Criminal Code which forbids him from possessing firearms and other forms of weaponry for ten years following the end of his imprisonment and forbids him from possessing prohibited or restricted firearms, and prohibited weapons, devices and ammunition for life.

[61] He will also provide a sample of bodily substances for the purposes of forensic DNA analysis, as required by the Criminal Code.

P. Campbell J. Released: November 17, 2023