Restriction on Publication

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Reasons for Sentence

Justice K. Tranquilli (Orally):

Introduction

L.M. and B.W. were found guilty of offences arising from burn injuries sustained by L.M.’s then six-year-old daughter, C.M., after a four-day judge-alone trial.

They now come before me for sentencing. Both L.M. and B.W. are to be sentenced on the offence of failure to provide the necessaries of life to C.M. contrary to s. 215(2)(b) of the Criminal Code. These offences arise from their failure to seek timely medical treatment for the child’s burns, thereby endangering C.M.’s life. B.W. is to be additionally sentenced on the offence of aggravated assault of C.M. contrary to s. 268(2) of the Code. This offence arises from B.W. having caused the localized scalding injury to the child by spraying hot water from a shower hose onto her body as a form of discipline or in anger.

Positions of the Parties

The Crown seeks custodial sentences for both offenders. The offenders each seek conditional sentence orders.

L.M.

For L.M., the Crown proposes a custodial sentence of 18 months for failure to provide the necessaries of life, followed by probation of three years. L.M. proposes a sentence of six months to be served in the community, with house arrest for a portion of that sentence, followed by probation of 12 months. Surveillance of L.M.’s compliance with the sentence would be assisted with GPS ankle monitoring for which L.M. has received approval.

B.W.

For B.W., the Crown proposes a global custodial sentence of four to four and one-half years, comprised of a sentence of three to three and one-half years for aggravated assault and a sentence of 12 months for failure to provide the necessaries of life, to be served consecutively. B.W. proposes a sentence of two years less one day for the offence of aggravated assault and a sentence of six months for the offence of failure to provide the necessaries, to be served concurrently and in the community. B.W. is also confirmed as qualified for GPS ankle monitoring.

Circumstances of the Offences

My reasons for judgment detail the evidence and findings at trial and will not be repeated at length: R. v. L.M., 2024 ONSC 6551. The court heard testimony from the victim, C.M., her mother and the investigating police officers. The court also received L.M.’s voluntary police statement and a medical opinion about the nature and cause of C.M.’s burn. Neither defendant testified at trial.

In February 2022, six-year-old C.M. had been in the continuous care of her father, the defendant L.M., and his common law partner, the defendant B.W., for approximately five months during a custody dispute with C.M.’s mother. C.M.’s mother obtained a court order on an urgent basis directing police to assist in returning C.M. to her mother’s care.

Police attended at the defendants’ home on the morning of February 21, 2022. They found C.M. in her bedroom, laying on her stomach with an absorbent pad beneath her. The bottom half of her body was unclothed. She had obvious burns to her buttocks, low back and upper thighs. Police understood she had sustained the injuries about two days earlier and had not been medically assessed. She was immediately admitted to hospital for assessment and treatment of partial thickness burns.

C.M. testified that the injuries were caused by B.W., who she knew as her stepmother at the time. She was alone at home with B.W., who was angry with C.M. for soiling her underwear. B.W. forced her to get into the bathtub and ordered her to turn around, after which B.W. directed hot water from the shower hose at the child’s buttocks. The child testified she immediately felt pain from the water temperature and screamed. She described that after the shower was over, B.W. picked what appeared to be tissue paper away from her buttocks, only to realize that it was pieces of skin.

L.M. told police the incident occurred while he was away from the house buying supper. Upon his return, he learned from B.W. that his daughter had hurt herself when she had been playing with the tap while she was having a bath. He understood the injury was not serious and he left her in her bedroom unchecked as discipline for playing with the taps against the rules. He saw the burns the next morning and noted they were big, red, and “bubbly”. He wondered if she had burned her buttocks while sitting in the tub and turning on the taps; however, he saw she had no burns on her feet. He did not take her for medical assessment or treatment because they searched for information online and he thought he and B.W. would be able to manage it at home, particularly as B.W. had some nursing training. The defendants managed the child’s injuries over the course of the next approximate one and one-half to two days with aloe gel, ice packs, cool baths, and pain medication. They instructed her to urinate into a dustpan and have bowel movements onto a pad on her bed because it hurt her too much to move when they assisted her to the bathroom.

L.M. claimed that he had noticed the appearance of his daughter’s burns appeared to worsen and that the defendants had planned to take her to hospital, but for the coincidental arrival of police to enforce the parenting order.

She was assessed by pediatric emergency medicine specialist Dr. David Warren, whose findings and opinion were received at trial. He noted she sustained homogenous, partial thickness burns that were localized to her central low back, bilateral buttocks, and upper thighs. In his view, the burns were non-accidental and caused by hot water applied to the child’s body by another person.

The absence of burns to other areas of her body, such as her hands and feet, indicated that the child did not cause the injury to herself, such as by climbing into a hot tub or sitting in the tub and turning on the tap. Rather, hot fluid was poured onto the area, or she was held, and her buttocks placed into hot water.

I found that the burns were caused by B.W. when she directed the hot water from the shower hose towards the child’s buttocks and low back as punishment or in anger and that a reasonable person in those circumstances would realize that the hot water would put C.M. at risk of suffering bodily harm.

I accepted that L.M. was unaware of the cause of the injury and did not initially appreciate the severity of the burn, such that it was reasonable to have first attempted home treatment. However, the circumstances were such that he soon came to appreciate that she had sustained a mysterious and large injury that was causing her considerable pain and limitation. A reasonably prudent parent in those circumstances, gaining awareness of the seriousness of the child’s situation, would have opted to seek medical treatment. His failure to do so was a marked departure from a reasonably prudent parent in the circumstances. I concluded he did not take his daughter for timely medical treatment because of concern about how this might impact his ongoing custodial conflict with her mother.

I found that B.W. actually knew the cause and circumstances of the child’s injury and was similarly placed to L.M. to soon appreciate that the burns required medical assessment rather than home treatment. Her failure to take the child for medical treatment was a marked departure from the conduct of a reasonably prudent caregiver in the circumstances. I found that B.W. did not take steps to arrange for timely medical treatment because she knew the injury was suspicious and would attract scrutiny.

Circumstances of the Offenders

The court has pre-sentence reports for each offender for consideration. I found these reports to be helpful as I did not hear from either defendant during the course of trial. These were entered as exhibits at the hearing.

L.M.

L.M. is 35 years old and unmarried. He has no prior criminal record.

He was in a common law relationship with B.W. at the time of these offences. They are not currently together, although he expressed a hope of reconciliation in the future.

L.M. was raised by his mother and in the absence of his father or a father figure. He described some instability in his childhood arising from financial stresses for his mother, which led to frequent changes in residences and schools. He struggled academically and said he was diagnosed with ADHD. He left high school to work full-time. He later completed his general education development test and attended college but left after one year. He was employed as a furniture delivery person at the time of this incident. However, he is currently unemployed and in receipt of Ontario Works.

He was previously in a seven-year relationship with C.M.’s mother. C.M. was born in the first year of their relationship. Their relationship began to deteriorate thereafter. C.M.’s mother confirmed their relationship was free of violence and substance abuse.

Their separation led to a contentious dispute regarding the parenting plan for their daughter. C.M.’s parents disagree on the details; however, it appears they had an informal agreement that provided for regular parenting time with L.M. For reasons I need not determine, their disagreements led to the mother withholding C.M. from parenting time with her father for a number of weeks until the Children’s Aid Society completed an investigation into some concerns the mother had reported to the agency. Once parenting time was reestablished, L.M. then withheld C.M. from returning to her mother’s care for several months up until February 2022 and the occurrence that led to these offences.

L.M. currently lives a quite isolated existence. C.M. and her mother are living with L.M.’s mother. He has no contact with his mother or other family members. He has limited friendship connections. He is currently living with the parents of one of his friends. The friend’s mother reported that she found L.M. to be a quiet, kind-hearted, and respectful person who she had known to be a loving father and who misses his daughter. She was willing to continue to support L.M., recognizing he was lacking supports at this time.

L.M. was sad about his loss of contact with his daughter and to learn that she does not see him as her father. He described struggling with depression and suicidal ideations for most of his life and that he attempted self-harm twice in 2023, leading to police and hospital interventions. No further details of this troubling information are known. He was also upset about the impact of these circumstances on C.M., although he maintains his innocence and plans to appeal the conviction. He believes he was doing the best he could in caring for his daughter and thought he was meeting her needs.

The report author recommended that L.M. would benefit from parenting programming, arranged in consultation with the Children’s Aid Society.

At the sentencing hearing, L.M. told the court he loves his daughter and misses her. He wants everyone to be happy.

B.W.

B.W. is 35 years old and unmarried. She has no prior criminal record.

She is the eldest of three children. She related that both parents struggled with alcohol misuse while she was growing up, although she did not think this had a negative impact on her happy childhood. She has positive and supportive relationships with her mother and grandmother.

B.W. holds her secondary school diploma and attended some post-secondary schooling in graphic design and then nursing, although she has not completed either program. She has employment experience in the service and health care fields. However, she has been unemployed over the last three years and relies on Ontario Works at present.

B.W. expressed love and compassion for C.M. and was concerned about the impact of the last few years on the child. She denied harming C.M. and intends to appeal the decision.

B.W. described symptoms of depression, emotional dysregulation, and panic attacks in connection with this court matter. She has no family physician and cannot afford counselling.

As with L.M., B.W. expressed an interest in reconciliation with L.M. in the future.

Her grandmother spoke at some length with the report writer and lovingly described her granddaughter as hardworking and someone who puts others before herself. She was concerned for B.W.’s mental health since these matters came before the court. Her granddaughter was previously outgoing, independent and hardworking. She was worried for B.W.’s ability to cope. Her grandmother related that B.W. had isolated herself from her positive peer network and her inability to work at present was hard on her both emotionally and financially.

The report writer recommended anger management programming and possibly parenting counselling should she be in a parental role with a child in the future.

The court also received letters of support for B.W. from her mother and grandmother. These touching letters were filed as exhibits at the sentencing hearing. Her mother related how B.W. had done well in school, was hard working, volunteered with the humane society, and is the first to help with someone in need, such as a senior. Her grandmother shared similar observations, also noting B.W.’s affection and responsibility for her pets. She had never seen her granddaughter act to hurt in anger.

Given her struggles with her mental health, B.W. declined the opportunity to address the court before imposition of sentence.

Circumstances of the Victim

The court received victim impact statements from C.M.’s mother and her great aunt, although not from C.M. herself.

I did have the opportunity to hear from and observe C.M. during her trial testimony. Although a delightful and talkative nine-year old, it was evident that she went through a traumatic experience and was continuing to try and make sense of what happened to her. She expressed a lack of interest in maintaining a relationship with either offender. The evidence at trial described that the child was admitted to hospital for treatment of her burns for approximately three weeks and was followed up in the burn clinic for some months thereafter. The court’s impression was that her physical injuries healed without complication, although I did not have any detail in that regard. Similarly, the court did not have any information about the child’s emotional well-being since the incident, but for the victim impact statements that I will address.

C.M.’s mother related that her daughter continues on her road to healing, but that this experience has left her with deep scars. She will always carry the trauma the defendants caused. She was not the same happy, trusting child when she returned to her mother’s care after this incident. She demonstrated fear and confusion towards her family and needed ongoing patience and unconditional support. She has shown ongoing signs of trauma, such as showing panic when seeing a truck or a reminder of her father’s workplace. She did not want to be left at school because she was afraid he would take her again.

Her mother described that the incident also tore their family apart. They felt powerless in having to watch her experience her pain and anxiety from her injuries. Her mother continues to experience separation anxiety and fear that her daughter will be taken again, even when C.M. stays with trusted family members.

C.M.’s great aunt described that C.M. and the entire family have all had to deal with feelings of anger, fear, and sadness. It was devastating for the family to witness the child’s painful bandage changes while in hospital. She went through months of ongoing fear, emotional dysregulation, and physical pain. C.M. continues to demonstrate a fear of seeing the defendants in the community and is afraid of them “taking her”. She was engaged in counseling and art therapy. She missed a significant amount of school and requires educational supports. Her great aunt is worried about the effects of trauma on her development but says C.M. is also resilient and will continue to heal.

I pause here to note that this incident occurred in the context of the child’s parental conflict regarding her custody and each parent’s ill-advised strategies of self-help in withholding the child from the other parent, which I expect would have some bearing on her emotional well-being and sense of security. Further, while I accept that she had educational setbacks as a result of her injuries, she was also behind in school because she had been home schooled by the defendants while she was in her father’s care. I am unable to determine the extent to which those circumstances have impacted the child’s psychological and cognitive well-being; however, I find that the circumstances of these offences are material and caused her psychological trauma.

Principles of Sentencing

Purposes, Objectives & Principles

The Criminal Code sets out the purposes, objectives and principles that must guide this court in determining a fit and appropriate sentence for these offences: ss. 718, 718.2.

The fundamental purpose of sentencing is to impose just sanctions to protect society, to contribute to respect for the law and the maintenance of a just, peaceful, and safe society: s. 718.

All sentencing starts with the fundamental principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1; R. v. Friesen, 2020 SCC 9, paras 30-33.

The Code also identifies additional principles that give expression to the fundamental principle of proportionality. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2(b). Where consecutive sentences for multiple offences are imposed, the combined sentence should not be unduly long or harsh: s. 718.2(c). An offender also should not be deprived of his or her liberty if less restrictive measures may be appropriate in the circumstances: s. 718.2(d). To that end, all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victim or to the community should be considered: s. 718.2(e).

A proportionate and just sentence must have one or more of the following objectives: 1. To denounce unlawful conduct; 2. To deter the offender and others from committing offences; 3. Where necessary, to separate offenders from society; 4. To assist in rehabilitating offenders; and 5. To promote a sense of responsibility in those who commit criminal offences and to acknowledge the harm done: s. 718.

It generally falls to the court to determine which of these sentencing objectives are to be prioritized in an individual case in fashioning a sentence that is proportional to the gravity of the offence and the degree of responsibility of the offender: R. v. Proulx, 2000 SCC 5, para 82. However, the Criminal Code requires the court to give higher priority to the objectives of denunciation and deterrence where certain circumstances are present. Where the offence involved the abuse of a person under the age of eighteen years, or where the offence involved a person who is vulnerable because of personal circumstances, the court must give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence: ss. 718.01, 718.04. This relative ordering of the objectives in such cases is intended to recognize the seriousness of the offence in those circumstances: Friesen, at paras. 101-102.

In such circumstances, the sentencing judge’s discretion is therefore confined from elevating other sentencing objectives such as rehabilitation or restraint to an equal or higher priority to the objectives of denunciation and deterrence. The sentencing judge nevertheless retains the discretion to assign significant weight to other factors, such as rehabilitation and restraint, in giving effect to the fundamental principle of proportionality: R. v. Lis, 2020 ONCA 551, paras 47-48.

A sentence should also be increased or reduced to account for any relevant aggravating or mitigating circumstances. The Criminal Code identifies several factors that are deemed to be aggravating circumstances: s. 718.2. I find that the following circumstances are relevant to the offences on which this court must sentence L.M. and B.W. and are deemed to be aggravating circumstances under the Code:

a. Evidence that the offender, in committing the offence, abused a member of the offender’s family;

b. Evidence that the offender, in committing the offence, abused a person under the age of eighteen years;

c. Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and

d. Evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health.

Parameters of the Offences

The offence of aggravated assault carries a maximum term of imprisonment of 14 years: s. 268(2). In these circumstances, the offence of failure to provide the necessaries of life carries a maximum term of imprisonment of five years: s. 215(3)(a).

Maximum sentences help determine the gravity of the offence and thus the proportionate sentence: Friesen, at para. 95. It is therefore of note that Parliament recently increased the maximum sentence for failure to provide the necessaries of life from two years to five years. Parliament’s decision to increase the maximum sentence is a clear signal that our legislature views the gravity of the offence as more serious than it did in the past. Parliament therefore expects such offences to be punished more harshly. An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for an offence. Courts are expected to generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences: Friesen, at paras. 97-100.

Conditional Sentences

L.M. and B.W. each ask the court to impose a sentence of imprisonment to be served in the community under supervision. The Code provides for the conditions and circumstances in which the court may order that the offender serve the sentence in the community. In the circumstances of this matter, I find the following requirements are engaged for my determination of whether a conditional sentence would be appropriate:

1. The court must impose a sentence of imprisonment of less than two years;
2. The court must be satisfied a conditional sentence would not endanger the safety of the community; and
3. The conditional sentence must be consistent with the fundamental purpose and principles of sentencing: s. 742.1.

The option for a conditional sentence was specifically enacted as a meaningful alternative to incarceration for less serious and non-dangerous offenders. It is recognized as being generally more effective than incarceration at achieving the restorative sentencing objectives of rehabilitation, reparations to the victim and community and the promotion of a sense of responsibility in the offender. However, it still restricts the offender’s liberty and has a punitive quality as it entails strict surveillance in the community, stigma, and the threat of incarceration in the event of non-compliance with those strict conditions: R. v. Proulx, 2000 SCC 5, paras 21-22.

Importantly, a conditional sentence is recognized as capable of achieving the objectives of denunciation and deterrence. However, there may be circumstances in which the need for deterrence will warrant incarceration: Proulx, at paras. 102-107.

Assessment

I now turn to determine the sentence for each of these offenders. I note that all parties filed caselaw for my reference in this determination. I have reviewed and considered each of them. While helpful, the decisions also reflect that sentencing is very much an individualized exercise that turns on the facts of each case. For example, several of the decisions relating to failure to provide the necessaries of life predate the increase in the maximum sentence and therefore arguably would have shifted upwards if before the court today. Further, the presence of a guilty plea was a significant mitigating factor in several of the decisions. This factor is not engaged in my determination.

B.W.

I must sentence B.W. on both aggravated assault and failure to provide the necessaries of life. I have proceeded to consider the relevant circumstances on a holistic basis; however, remain mindful of the need to avoid a double counting of a circumstance as between the two offences.

I find that B.W. carries a high degree of moral blameworthiness in respect of both offences.

She was in a responsible position as the child’s de facto caregiver and stepparent at the time. She was expected to nurture and protect the vulnerable child rather than expose her to danger and harm. While I did not find she intended to scald the child’s body, I found she intentionally sprayed hot water on the child’s buttocks either as a form of discipline or in anger for the child having soiled her underwear. A reasonable person in her circumstances would realize the hot water would put the six-year-old child at risk of suffering some kind of bodily harm. She was reckless and indifferent to the child’s reaction and the result. Moreover, B.W.’s breach of her duties to provide the necessaries of life through seeking timely medical treatment was serious. B.W. knew about the cause of the injury, concealed this from L.M. and allowed the child to suffer from significant pain and exposed her to the risk of further injury and complication through the intentional avoidance of medical treatment.

This conduct resulted in serious physical and emotional trauma for the child, speaking to the grave circumstances of each offence. C.M. sustained partial thickness burns, requiring hospitalization and treatment. I recognize the burns were the result of a single isolated incident of abuse. They were also apparently not disfiguring, life changing or requiring interventions such as skin grafting. However, this only attenuates the severity of the harm relative to the worst outcomes that one could contemplate on the spectrum of moral blameworthiness. As mentioned, there is little information as to the child’s physical recovery, although there was no suggestion that she continues to experience any physical impairment. However, she continues to suffer the psychological effects of this trauma. It has had a profound impact on her understanding of the world and the adults in her life. Given her young age at the time of these offences, I find it is a reasonably foreseeable consequence of this incident that there are other forms of potential harms that have yet to materialize and may in fact materialize later in C.M.’s childhood or adulthood: Friesen, at paras. 83-84.

It follows that the circumstances of both offences engage denunciation and deterrence as the primary objectives in the court’s determination. C.M. was a young, vulnerable child. While I may give some weight to the principles of restraint and rehabilitation, I cannot give those factors equal or greater prominence in this delicate assessment.

These circumstances also highlight several statutory aggravating circumstances that the court must consider in imposing sentence. B.W. stood in the role as a parent towards C.M. at the time of the offence. C.M. was in her care and home schooled by this offender while her father was at work. C.M. was young, vulnerable, and relied on B.W. for her safety and well-being. The violent assault with hot water caused a serious injury and suffering to the child, which B.W. chose to minimize and conceal in her own self-interest. These acts each demonstrate a significant breach of trust. Finally, as reviewed, the partial thickness burns were not superficial and caused significant injury and pain for the child. The subsequent neglect in seeking medical treatment exacerbated an already grave situation. She was bed ridden and forced to toilet on her bed, clearly signaling the need for medical intervention. The failure to act unnecessarily prolonged the child’s pain and at risk of complicating her injuries through infection.

Mitigating circumstances are also present. B.W. has no prior criminal record. Her pre-sentence report is largely positive. She has historically been a productive and prosocial member of our community, having been gainfully employed and having completed some post-secondary training. The lack of prior criminal record, the pre-sentence report and the reference letters all suggest this was an isolated incident and was out of character for this offender. She has expressed compassion for C.M. and the child’s well-being. These factors all touch upon the restorative sentencing objectives and principles of rehabilitation and restraint.

That said, her compassion falls short of remorse. She denies responsibility for the child’s injuries and plans to appeal the verdict. This is not an aggravating factor, but it is the absence of a mitigating factor that would otherwise add weight to the prospects for rehabilitation.

The court is asked to consider the imposition of a conditional sentence for these offences. Because a conditional sentence can provide deterrence and denunciation, it is recognized that it may be appropriate for a crime involving violence, such as aggravated assault, even when deterrence and denunciation are a paramount consideration: R. v. Ali, 2022 ONCA 736, para 27. A sentencing judge should consider whether a custodial sentence or a conditional sentence would better address all the relevant sentencing objectives: denunciation, deterrence, restraint, and rehabilitation: Ali, at para. 28. To that end, I certainly recognize the punitive conditions that could be fashioned for this first-time offender in a manner akin to incarceration, with house arrest, other restrictions on her liberty and penal consequences in the event of a breach.

However, I must first determine the appropriate range of sentence for these two offences before continuing a consideration of whether B.W. qualifies for a conditional sentence: R. v. Nusrat, 2009 ONCA 31, para 53.

Notwithstanding B.W.’s relative youth, lack of a criminal record and her prosocial history, I have determined that the appropriate sentence directed by these circumstances exceeds the threshold requirement that the sentence be less than two years. She carries a high degree of moral blameworthiness for both offences, for the reasons I have just summarized. Both offences engage denunciation and deterrence as the primary objectives. This does not mean I should disregard the principles of rehabilitation and restraint. However, having weighed those factors within the entirety of the circumstances, I conclude denunciation and deterrence require both a term of imprisonment and one that exceeds the requirement that it be less than two years.

These circumstances are to be distinguished from those in Ali. That case concerned aggravated assault as between adult offenders and an adult victim. In contrast, these circumstances highlight a pressing need for the primacy of denunciation and deterrence to the extent that the only suitable way to express condemnation of B.W.’s conduct is a term of imprisonment. These offences involved the violent assault of a vulnerable child. She experienced serious injuries as a result, which were then exacerbated through the breach of the offender’s duty to ensure that she received timely medical care. The circumstances of each offence involve a serious breach of trust.

While neither of the following decisions reflect all the same factors as are now before this court, I find they are nevertheless contextually instructive in determining the fit sentence in the circumstances of these offences and this offender.

In R. v. Lis, 2020 ONCA 551, the offender entered a guilty plea to failure to provide the necessaries of life to her nine-year old medically fragile daughter who died from complications of malnutrition and dehydration after several weeks of neglect and following several months of failure to follow up for necessary medical care. On appeal, the court held the time served sentence of 17 months failed to give primacy to the objectives of denunciation and deterrence and failed to reflect the consequences of the increased maximum punishment enacted by Parliament for failure to provide the necessaries. The Court of Appeal determined that a fit sentence in the circumstances of the offence and the offender was three to three and one-half years imprisonment.

In R. v. Nickel, 2012 ABCA 158, the offender entered a guilty plea to aggravated assault and failure to provide the necessaries of life in respect of his infant daughter. He deliberately placed her feet in hot water to see her reaction and then dissuaded her mother from seeking medical attention for the third degree burns for four days. The sentencing judge imposed a custodial sentence of 75 days for the aggravated assault and 15 days consecutive for failing to provide the necessaries. The Court of Appeal found this sentence failed to reflect the degree of the offender’s moral culpability and the primary sentencing objectives of denunciation and deterrence as it related to the abuse of the offender’s vulnerable child. The court imposed a sentence of three years imprisonment for the aggravated assault and six months imprisonment, consecutive, for the failure to provide the necessaries. The court noted that the six-month sentence was fit within the context of the then two-year maximum sentence for imprisonment and found that the sum of those sentences did not require adjustment for totality.

I will first determine the just and appropriate sentence for each offence individually and then consider whether the sentences ought to be consecutive or concurrent. Depending upon that outcome, I would then have to consider whether the combined sentence is unduly long or harsh.

B.W. - Disposition

I have concluded that a fit and proportionate sentence for the aggravated assault of C.M. is 30 months, or two and one-half years imprisonment. This reflects the offender’s moral blameworthiness for her violent assault of a vulnerable child, the severity of the consequences for C.M., and the primary objectives of denunciation and deterrence. She may not have intended to cause a lasting injury to C.M., but she deliberately used hot water, whether as punishment or in anger and persisted in applying the water despite the child’s reaction. She was callous and reckless to the risk of bodily injury. At the same time, this sentence recognizes the child’s physical recovery and progress since her initial injuries and the fact that this was an isolated event that was out of character for this first-time offender.

I conclude that a fit and proportionate sentence for the offence of failure to provide the necessaries is 18 months, or one and one-half years. This reflects the offender’s moral blameworthiness in concealing the true nature of the injury and avoiding medical treatment to evade accountability for the assault, to the detriment of the child. While treatment was attempted by both offenders, the child unnecessarily suffered pain and primitive and undignified conditions for approximately two days. This sentence is also a reflection of Parliament’s intention that sentences for this offence are expected to increase.

I find that the sentence for failure to provide the necessaries is to be served consecutive to the aggravated assault. I acknowledge one can characterize the conduct within each offence as being closely connected and arising from the same event so as to constitute a single criminal adventure. However, I find that each offence in question protects a distinct social interest and causes distinct harms. The offence of aggravated assault addresses this child’s right to be free from intentional interference with her bodily integrity. The offence of failure to provide the necessaries of life is aimed at establishing a uniform and societal minimum level of care to be provided by individuals such as parents and caregivers towards those in their charge: R. v. Naglik.

Nevertheless, I find that the combined total sentence of four years to be unduly harsh as it risks overemphasizing denunciation and deterrence at the expense of the principles of restraint and rehabilitation for this first-time offender who otherwise has a positive history and strong support from her family.

Having regard to the principle of totality, I accordingly find that a global sentence of three and one-half years is appropriate in the circumstances. I apportion the global sentence as two and one-half years on Count 2 for the aggravated assault and 12 months on Count 1 for the failure to provide the necessaries of life.

I understand there is no pre-trial custody for a credit.

As the conviction on Count 2 for aggravated assault is a primary designated offence, there shall be an order in Form 5.03 authorizing the taking of samples of bodily substances reasonably required for the purpose of forensic DNA analysis pursuant to s. 487.051(1) of the Code.

Also pursuant to the conviction on Count 2 for aggravated assault, there will be a mandatory weapons prohibition pursuant to s. 109(1)(a.1) of the Code for a period of 10 years.

Pursuant to s. 743.21 of the Code, B.W. shall not communicate directly or indirectly with C.M. or her mother, J.H. during the custodial period of her sentence.

In the circumstances I waive the victim surcharge due to undue hardship.

L.M.

I now turn to the determination of a fit and appropriate sentence for L.M. for the single count of failure to provide the necessaries of life.

I find that L.M.’s moral blameworthiness is high; however, his culpability for his failure to act is less than that of the co-offender. He was not responsible for causing the burns. He was unaware of the circumstances of how his daughter came to be injured and initially relied on B.W. in deciding they could manage C.M.’s injuries at home without medical assessment. I recognize that the child was not denied any treatment and that they tried to manage her injury. His culpability arises from his failure to act once he recognized the injury was worse than he had first understood and saw that she was not improving; rather, it got worse. The child’s pain and limitations ought to have prompted a decision to seek medical assessment and care. His reckless decision to instead “hope for the best” arose from his misplaced priority on managing his custody dispute with the child’s mother, rather than the child’s well-being.

Denunciation and deterrence are again engaged as primary sentencing objectives as this offence involved circumstances of the abuse of a child, with significant consequences for her well-being and in circumstances of a breach of trust. These circumstances also trigger consideration of the statutory aggravating factors that I previously reviewed.

Mitigating circumstances are also present. He is also a first-time offender with no criminal record and a generally positive pre-sentence report. He expressed concern for his daughter’s well-being. However, like B.W., he comes short of expressing remorse and does not take responsibility for his decision-making as he plans to appeal the conviction. This is not aggravating but is an absence of a mitigating factor that would further animate the principle of rehabilitation in this assessment.

He must also face the collateral consequences of the disruption to his relationship with his daughter, with whom he has now had no contact for the last three years. It is unfortunate this incident has deprived the child of having both parents in her life. Whether that relationship is permanently lost to him I cannot say, but I hope this next step may assist him in efforts to rebuild that relationship, subject to the child’s best interests. I encourage the pre-sentence recommendations for counselling and parenting support.

In these circumstances, I find a fit and proportionate sentence is 14 months, followed by a period of probation of one year.

As this sentence is less than two years, I must consider whether a custodial sentence or one served in the community as a conditional sentence would better address the sentencing objectives: Ali, at para. 28.

I am satisfied that L.M. would not endanger the safety of the community if he were to serve his sentence under supervision in the community. He has no prior criminal record. This is an isolated incident of a crime of omission, where he did demonstrate some care and attention for the child’s injuries. The victim of his offence, his daughter, is currently not under his care and supervision. He is not in a parental position of responsibility toward any other child.

I am also satisfied the service of the sentence in the community would continue to promote denunciation and deterrence as the paramount objectives, with punitive provisions for house arrest and other accountability, but would also allow for some weight for the objectives of restraint and rehabilitation.

L.M. - Disposition

L.M. is sentenced on Count 1 for a term of 14 months to be served in the community under supervision, followed by a one-year period of probation.

Conditional Sentence Order

In addition to the statutory terms and conditions for the conditional sentence, I impose the following additional terms:

1. L.M. shall participate in the 24-hour GPS monitoring program for the duration of his conditional sentence and in accordance with the GPS Rules and Protocols.
2. For the first eight months of his sentence, he shall remain within his residence daily except in the following circumstances:
   • Attendance for employment;
   • Attendance for medical/dental/counselling appointments and any scheduled court attendances and travel related to such appointments;
   • Meetings with his conditional sentence order supervisor or treatment/counselling sessions as directed by his supervisor;
3. On Saturdays between 10:00 am and 2:00 pm to shop for personal needs/necessaries of life;
4. Attendance for religious worship;
5. In relation to any other matter as may be pre-approved in writing by the conditional sentence order supervisor;
6. For the last six months of the conditional sentence, he shall remain in his residence between 10:00 pm and 6:00 am, seven (7) days a week, except in the circumstances described in paragraph 2 above;
7. He shall carry the conditional sentence order with him whenever he is outside of his residence;
8. He shall reside at a location approved by his conditional sentence order supervisor and advise his supervisor of any change in address;
9. He shall not associate or communicate directly or indirectly, including by electronic means, with C.M., except with the approval of the Children’s Aid Society or pursuant to a court order;
10. He shall not attend the residence, school or any place he knows to be frequented by C.M., except with the approval of the Children’s Aid Society or pursuant to a court order;
11. He shall not be within 100 metres of any place where C.M. lives, attends school, frequents or any place he knows her to be, except with approval of the Children’s Aid Society or pursuant to a court order;
12. He shall not have any child under the age of 12 in his care without the supervision of an approved adult;
13. He shall attend and actively participate in any counselling or rehabilitative programming as directed by his supervisor;
14. He shall find and maintain employment or attend school as recommended by his supervisor.

Probation

After completion of his conditional sentence, he shall serve a period of probation of one year. In addition to the statutory terms and conditions, I impose the following additional terms:

1. He shall within two business days after completing his conditional sentence, report in person to his Probation Officer and thereafter continue to report as directed by his Probation Officer;
2. He shall notify his Probation Officer in advance of any change of name or address and promptly notify the court or his Probation Officer of any change in employment or occupation;
3. He shall reside where approved by his probation officer;
4. All terms as set out in paragraphs 9 to 14 of the conditional sentence order as it relates to contact or communication with C.M., having a child under the age of 12 in his care, participation in counselling or rehabilitative programming and finding and maintaining employment or school shall also continue.

As the conviction on Count 1 is a secondary designated offence pursuant to s. 487.04(a), and given the circumstances of this offence, there shall be an order in Form 5.04 authorizing the taking of bodily samples for forensic DNA analysis pursuant to s. 487.051(3) of the Code as I have found it is in the best interests of the administration of justice to do so.

In the circumstances, the victim surcharge is waived due to undue hardship.

Justice K. Tranquilli

NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record.

Released: May 12, 2025