Court File and Parties
Court File No.: 22-7608 Date: 2024-06-03 Ontario Superior Court of Justice
Between: His Majesty The King, Appellant – and – S.D., Respondent
Counsel: Laura Liston, for the Crown Jeylan S. Davies, for the Respondent
Heard: May 1, 2024
Before: McVey J.
Reasons for Judgment on Summary Conviction Appeal
Introduction
[1] S.D. pleaded guilty on December 15, 2022, to assault causing bodily harm on her 12-year-old daughter, M.D., and an assault on her four-year-old son, T.K. The Crown elected by summary conviction. On October 25, 2023, in an oral decision that was ultimately reduced to a 40-page transcript, the sentencing judge granted S.D. a conditional discharge with three years of probation.
[2] The Crown appeals this sentence on the basis that 1) the sentencing judge prioritized rehabilitation over denunciation and deterrence; and 2) the sentence was demonstrably unfit given the bodily injuries M.D. sustained, and the fact that a parent inflicted them.
Facts
[3] The parties filed an Agreed Statement of Facts as part of the plea.
[4] S.D. has three children, M.D., T.H.K., and T.K. At the time of the plea, they were approximately 12, 6 and 4 years old, respectively. To some extent, S.D. shared custody of the children with T.H.K. and T.K.’s biological father.
[5] S.D.’s youngest child, T.K., suffers from an extremely rare and severe autoimmune disorder that causes cardio-pulmonary failure and seizures. Very few children worldwide have been diagnosed with this condition. S.D. undertook extensive and exhausting efforts to have T.K. properly diagnosed once he began to manifest symptoms.
[6] On December 23, 2021, S.D. flew into a rage after discovering that the family dog had chewed her footwear. She repeatedly hit M.D. in her face, head, and body with high-heeled footwear. After M.D. retreated to her bedroom, S.D. followed her and continued the assault. M.D. sustained a black eye, broken vessels in her right eye, bumps on her head, bruising on her forearm and leg, and soreness on her foot.
[7] With respect to the assault committed on T.K., in December 2021, after T.K. accidentally burned himself with a clothing iron, S.D. dragged him upstairs and slapped his face and arms.
[8] Both a presentence report and a section 21 report were completed after the plea.
The Law
[9] The Supreme Court of Canada has described sentencing as “one of the most delicate stages” of our criminal justice process: R v Lacasse, 2015 SCC 64, at para 1. It is “profoundly subjective”: R v Shropshire, [1995] S.C.J. No. 52, at para 46. A sentencing judge is called upon to conduct a careful balancing of the “societal goals of sentencing with the moral blameworthiness of the offender and the circumstances of the offence”: R v C.A.M., [1996] S.C.J. No. 28, at para. 91.
[10] A sentencing judge enjoys a broad discretion when conducting this intensely contextual process. Absent an error in principle or law, a sentencing judge’s ultimate determination is entitled to substantial deference unless the sentence is found to be demonstrably unfit in the circumstances. An appellate court should not interfere solely because it may have weighed the relevant factors differently or imposed a different sentence.
[11] Those who commit violent crimes resulting in injury will rarely receive a conditional discharge. In R v Huh, [2015] O.J. No. 2514, at para 12, the Court of Appeal for Ontario adopted the following observation from one of its earlier cases: “in cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused” (emphasis added).
[12] It goes without saying that violent crimes committed against children particularly cry out for denunciatory and deterrent sentences. Children are the most vulnerable members of our society, and, sadly, their abusers are often those closest to them. Children are in almost all ways completely defenseless and dependent on their parents and guardians for protection. As noted by the Court of Appeal in R v C.M.R., [2004] O.J. No. 4490 (C.A.) at para 14:
Strict maintenance of the trust relationship between parents and children, particularly children whose vulnerability and needs are heightened by young age, developmental difficulties or conditions or other similar factors, is an integral component of responsible and civilized community life in Canada. Few, if any, other relationships in society will attract more rigorous scrutiny by the courts in their application of the law in order to protect against the abuse and exploitation of vulnerable persons by those to whom their care and protection has been entrusted.
[13] For this reason, the general principle adopted in Huh undoubtedly plays out with enhanced force when dealing with violence committed against children, particularly when the offender is someone entrusted with their protection.
[14] These common law principles are also codified in s. 718.01 of the Criminal Code which mandates that sentencing judges give primary consideration to the objectives of denunciation and deterrence when imposing sentence in matters of child abuse.
Application
[15] A conditional discharge, even one coupled with a three-year probationary term, was undoubtedly an exceptionally lenient sentence given the physical and emotional harm perpetrated on M.D. and T.K. by their own mother. This Court appreciates why this result gave the Crown pause about whether the sentence was just in the circumstances and what precedential impact it may have in future cases.
[16] With that said, the sentencing judge’s reasons disclose that she was undoubtedly aware of the applicable sentencing principles and the exceptional nature of a conditional discharge in the circumstances given that bodily harm was inflicted on a young child by a parent. The sentencing judge carefully reviewed numerous cases and explicitly and repeatedly delineated that in cases involving child abuse, denunciation and deterrence must receive primary, though not necessarily sole, emphasis. I see no error in her appreciation of the applicable law.
[17] The sentencing judge noted all the aggravating features which included a substantial breach of trust, that there were multiple child victims, and that they suffered both physically and emotionally from S.D.’s assaultive conduct. The sentencing judge also adverted to the many mitigating features which I will describe more fully below. In her own words, the sentencing judge “agonized” over the appropriate disposition given the many competing tensions on the facts before her.
[18] Ultimately, the sentencing judge determined that, though truly exceptional, the following mitigating features, when viewed cumulatively, justified the imposition of a conditional discharge:
- S.D. entered a guilty plea.
- S.D. had no criminal record.
- S.D. exhibited genuine and unremitting remorse.
- S.D. was in the throes of a mental health crisis at the time of the offences. The forensic psychiatrist who assessed S.D. opined that, in December 2021, S.D. was suffering from major depressive disorder and anxiety disorder and was experiencing dissociative episodes during which she felt detached from reality. I note that S.D. did not argue at sentencing that she was unable to understand and appreciate the wrongfulness of her conduct at the time of the assaults – this would naturally have called into question the validity of her plea. Rather, she asserted, and the sentencing judge accepted, that she was unable to understand the full impact of her actions which distinguished her from those offenders who intentionally cause harm to their children.
- S.D. attended for appropriate counseling which included psychotherapy with a social worker and treatment at the Royal Ottawa Hospital. She also began taking prescribed medication for depression and anxiety.
- S.D.’s son, T.K., has a rare genetic disorder that rendered him unable to participate in schooling or daycare during the pandemic due to his special needs. S.D. worked tirelessly to have T.K. properly diagnosed. Many physicians viewed T.K.’s symptoms with skepticism. S.D. travelled with T.K. to hospitals around the world to ensure he received a proper diagnosis and treatment.
- At the time of the offences, S.D. had primary care of all three of her children with little emotional or financial support.
- In 2021, S.D. was diagnosed with cervical cancer. She underwent two operations and was unable to work. Due to financial pressures, she lost her home and had to live with her three children in a friend’s basement for many months. She became socially isolated during that time.
- S.D. volunteered in the community for years as a firefighter and a car seat technician, ensuring that new parents had properly installed car seats for their children. When S.D. was expecting her third child, she opened a daycare and cared for children whose parents worked as paramedics, firefighters, and police officers. She also led an anti-bullying and suicide educational campaign.
- Letters of support were filed by close friends of S.D. who were aware of the charges before the Court. They described S.D. as a devoted, kind, and hardworking mother who ultimately snapped under the enormity of the pressures she faced at the time.
- S.D. grew up in an unstable, broken home and was allegedly sexually abused by her stepfather.
[19] The Crown argues that the sentencing judge elevated the sentencing principle of rehabilitation over denunciation and deterrence and that doing so constituted legal error justifying appellate intervention. The Crown relies solely on the result itself to demonstrate this error. In my view, the imposition of a conditional discharge, on its own, does not necessarily disclose that a sentencing judge committed an error in principle by placing undue weight on rehabilitation. Here, the sentencing judge clearly understood that general denunciation and deterrence were the primary sentencing objectives. She repeated this numerous times. Moreover, there is nothing in her reasons to suggest she deviated from this mandatory direction in her analysis. In my view, rather than prioritizing rehabilitation over denunciation and deterrence as alleged by the Crown, the sentencing judge found that general deterrence and denunciation did not require a custodial sentence in the unique circumstances of this case. In my view, there is a difference between prioritizing rehabilitation over denunciation, and finding that denunciation does not require a custodial sentence due to extensive mitigation. The latter is what occurred in this exceptional case. I do not find that the sentencing judge relied on the principle of rehabilitation to justify the imposition of a conditional discharge.
[20] The Crown also argues that the sentence imposed was demonstrably unfit. For the same reasons, I disagree. As noted, the imposition of a conditional discharge in circumstances where a parent inflicts bodily harm on their child is extremely rare. In the vast majority of circumstances, a conditional discharge would be demonstrably unfit. Though I stress, as the sentencing judge implicitly did as well, that this was a remarkably close call. Each and every one of the mitigating features cited above was required to justify this exceptional disposition.
[21] Had S.D. simply pleaded guilty, been remorseful and participated in counselling before sentencing – a combination of events that is not particularly unusual – I would not have hesitated in overturning this result. What makes S.D.’s case truly unique are the many extenuating and exceptional stressors she experienced leading up to December 2021 which by all accounts caused an otherwise prosocial and good mother to snap. The pressure she was under manifested itself in diagnosed mental health struggles that ultimately played a live role in the offences. The sentencing judge found there was a strong nexus between S.D.’s mental health struggles and the offences themselves which lessened her moral blameworthiness significantly. This finding was entirely open to her, and the Crown does not argue that the sentencing judge misapprehended the psychiatric evidence.
Conclusion
[22] We must never lose sight that sentencing is profoundly sensitive, human work. Though not explicit in our Criminal Code, our criminal justice system is not beyond extending mercy where appropriate.
[23] This was a tremendously difficult sentencing which required a delicate balancing of the competing tensions involved. The sentencing judge made her decision after considering all the available jurisprudence and adverting to and applying all the proper principles. It rightfully attracts deference. I see no error in her analysis, nor is the sentence itself demonstrably unfit in the exceptionally unique circumstances of this case.
[24] For the above reasons, the Crown’s summary conviction appeal is dismissed.