Court File and Parties
Court File No.: CR-25-37 Date: 2025-09-11 Ontario Superior Court of Justice
Between: His Majesty the King – and – Nancy Fahmi
Counsel: Ms. M. Mackenzie, for the Crown Mr. J. Alsbergas, for Ms. Fahmi
Heard: September 11, 2025
Reasons for Sentence
Conlan J.
I. The Circumstances of the Offence
[1] Nancy Fahmi ("Fahmi") has pleaded guilty to and been found guilty and convicted of criminal negligence causing death, contrary to section 220(b) of the Criminal Code.
[2] She left her very young son, not even 2 years and 10 months old at the time, a boy with significant developmental delays and a formal diagnosis of Autism Spectrum Disorder, alone in the bathtub, sitting in about 8 inches of water.
[3] When Fahmi left the boy unattended, she went to a different floor of the home to retrieve some laundry. She was gone for 2-3 minutes. Upon her return to the upstairs bathroom, the boy was face down in the water and unresponsive. The boy was pronounced deceased at the hospital not long afterwards.
[4] This is a tragic case. A very young child has been taken. Fahmi, her husband, and their two older children are left behind.
II. The Circumstances of the Offender
[5] Fahmi is a pharmacist by profession, educated and intelligent, though she was not working in that capacity at the time of the offence. Rather, she was the stay-at-home caregiver for the young boy.
[6] The offender is currently 45 years of age. She is a Canadian citizen. She has no prior criminal record or history of any kind. She is married. The couple now has two children – a 20-year-old son who is studying pharmacy in the United Kingdom and a daughter who is in high school.
[7] The presentence report that was filed with this Court is quite positive. Fahmi presented to the author of the report as being polite, cooperative, respectful, forthright, and she expressed genuinely strong feelings of guilt, remorse, and acceptance of responsibility.
[8] Fahmi has had some medical issues in the past, including thyroid cancer which necessitated major surgery.
[9] There are no substance abuse issues for Fahmi.
[10] Fahmi is a practicing Christian and attends Church every Sunday. She has engaged in some bereavement counseling since the death of her son, however, her husband told the author of the presentence report that he remains quite concerned about her mental health.
[11] This Court accepts that Fahmi would be a suitable candidate for community supervision.
III. The Sentencing Positions of the Crown and the Defence and the Paramount Principles of Sentencing for this Offender, on these Facts
[12] There is no question that the most important sentencing principles that apply here are denunciation and deterrence, mainly general deterrence.
[13] Rehabilitation of this offender is also important, but secondarily so.
[14] This Court waives the imposition of the victim fine surcharge in light of the overall disposition of the matter.
[15] The Crown requests a sentence of 18 months in custody. The defence requests a conditional sentence order of 2 years less 1 day in length, to be followed by probation.
[16] There is no opposition to the Crown's request for a secondary DNA order, and this Court hereby makes that order.
IV. What is a Fit Sentence for Fahmi?
[17] In terms of the legal parameters, Fahmi is not facing any mandatory minimum penalty. As a reflection of it being one of the most serious offences in Canadian criminal law, the maximum punishment that could be handed down in this case is life imprisonment.
[18] There are some mitigating factors here. They include the guilty plea, the lack of any criminal history for Fahmi, the genuine remorse and acceptance of responsibility for what she did, and Fahmi's otherwise exemplary character.
[19] There are numerous aggravating factors here, some of them prescribed by statute. This victim was a very young child. A highly vulnerable child because of his significant developmental delays. What occurred on this terrible day represents a gross breach of trust committed by the very person who was responsible for the victim's wellbeing.
[20] Further, I would not describe this as a fleeting lapse of judgment by Fahmi. Rather, she left her developmentally delayed, autistic toddler in a bathtub that was quite full of water for at least two minutes while she went to a completely different part of the home.
[21] In addition, I agree with the Crown that this case is marred by not one negligent act but several. Fahmi did not remove the boy from the bathtub despite seeing him face down in the water and unresponsive. She did not call 911. She did not attempt to provide any CPR or other emergency aid to the boy. She did not seek assistance from the other children who were inside the home at the time until instructed to do so by her husband.
[22] This Court appreciates that Fahmi may have been in shock as a result of what she saw when she returned to the bathroom from downstairs, but it cannot be ignored that her negligent conduct and bad decision-making persisted beyond her having left the child unattended in the bathtub.
[23] Defence counsel is correct that a conditional sentence order is capable of achieving meaningful denunciation and both punitive and restorative objectives. R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paragraphs 82, 98-100, and 105.
[24] Defence counsel is also correct that a sentence of less than 2 years in custody would be suitable for Fahmi, as acknowledged by the Crown, and that this offender being permitted to serve a sentence of imprisonment in the community would not endanger the safety of the community. I agree with both of those propositions.
[25] Defence counsel is correct, further, that there is no firm range of sentence for this offence and that there are cases where somewhat similarly situated offenders have received very modest carceral terms, including as just one example the decision of Justice Keast of the Ontario Court of Justice in R. v. E.W., [2019] O.J. No. 5619 – also a bathtub child drowning case where the offender was sentenced to 90 days in jail, to be served intermittently, plus probation.
[26] As is always the case, the sentencing process here is a delicate one. It is a highly individualized one. It is artful and not scientific. It is aimed at ensuring that the ultimate sentence imposed is commensurate with the gravity of the offence and the degree of responsibility, in other words the level of moral blameworthiness, of the offender.
[27] The gravity of this offence is undeniably high. No reasonable person could dispute that.
[28] But the degree of responsibility of this offender is also high. The aggravating features of this case, described above, serve to heighten the level of Fahmi's moral blameworthiness.
[29] In my view, drawing upon as guidance the decision of the Court of Appeal for Ontario in R. v. Lis, [2020] O.J. No. 3733, 2020 ONCA 551, the abuse of a child is not a concept that is limited to sexual abuse; nor is it a concept that is limited to abuse that takes the form of an intentional assault, for example.
[30] What occurred here was a form of child abuse.
[31] There may be cases where a conditional sentence order would be a fit disposition for a parent or caregiver who is criminally negligent and causes the death of a child under their supervision. This case is not one of them, however.
[32] I have concluded that a real jail sentence is required. In an effort to respect the principle of restraint and to properly account for the mitigating factors that exist here, I have decided to impose a sentence of 12 months' imprisonment, rather than the 18 months suggested by the Crown.
[33] The sentence of the Court is 12 months' imprisonment to be followed by 12 months of probation.
[34] My view is that the probation is required, and in fact it was requested by the defence, in order to assist Fahmi with her grief.
[35] The conditions of the probation order, beyond the compulsory ones, are: reporting within two working days after release from custody and thereafter as required by the probation officer; counseling as directed, which said counseling shall include grief counseling; and the signing of any necessary releases of information to monitor the counseling. Nothing else is necessary in these unique circumstances.
[36] I repeat, this is a tragic case. This Court feels much empathy for Fahmi, her husband, and their two surviving children.
[37] It may appear harsh to some that this Court has not acceded to the defence request for a conditional sentence order. Empathy cannot justify what I think would be an unfit sentence, however.
[38] I wish you and your family peace and good health, Ms. Fahmi.
Conlan J.
Released: September 11, 2025